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A Crisis set! How to resolve?

(R.N.Manjula, Presiding Officer, Princial !a"our Court, #ellore$.

When the news about the recent judgement of the Division Bench of the High Court of
Madras, which set aside an Official Memorandum dated 0!01!1""# issued b$ the %egister of the
High Court of Madras, which &ermitted the 'udicial Officers of the (ubordinate Courts to write
'udgements, Decrees, )wards and Orders in *nglish s&read, tension &revailed among the Officers of
(ubordinate Courts! +t evo,ed mi-ed res&onse and reaction from the officers and each one has a
different understanding and doubts on the verdict! )s a member of the (ubordinate 'udiciar$, for
m$ &art, + also have m$ own version of understanding and an-iet$! .ar behind the far reaching
im&lications of the judgment and much ahead of the bugbears fl$ u&on the minds of our officers, a
crisis is visualised and that is what &rom&ted me to write this article!

.or the &ur&ose of clarit$, it is relevant to brief the facts of the case! /he judgment which
is re&orted in CD' 001# MHC 012 3(olai (ubramaniam alias (!(ubramani 4 )nother 5s /he
Chief (ecretar$ /amil 6adu 4 )nother 3W!7!3MD8 6o!09"# of 00108 8 is a result of a 7ublic
+nterest :itigation filed before the Madurai Bench of Madras High Court, wherein the &etitioner has
challenged the im&ugned circular on the ground that it was not in conformit$ and in e-cess of the
statutor$ &ermission given to the High Court under the second &roviso to (ec!#;B318 of the /amil
6adu Official :anguage )ct 1"1 and &ra$ed to set aside the circular &ros&ectivel$ and direct the
(ubordinate 'udicial Officers to write 'udgments, Decrees, )wards and Orders etc!, onl$ in /amil!
B$ virtue of the &ower granted to the (tates under )rt! 9#, the (tate of /amil 6adu had
enacted the /amil 6adu Official :anguage )ct, 1"1 and ado&ted /amil as the official :anguage!
But however, *nglish is also allowed to be used for all the official &ur&oses of the (tate, though it is
not an official language as laid down in (ec!9 of the said )ct! +n sec!#, the (tate reserves its &ower
to issue notifications and direct that /amil should be used in res&ect of official &ur&oses that ma$ be
s&ecified in the notification! )n amendment was brought in the $ear 1"<1 3)ct!6o!#1=1"<18 , for
the &ur&ose of inserting (ec!#) and #B! /hese two &rovisions ma,e it obligator$ that the (ub;
ordinate Courts should record evidence and write judgments in /amil! However, the second &roviso
to (ec!#) 318 and #B 318 give a >ualified &ermission to the High court to grant &ermission to an$
class of officers or an$ officer of an$ civil or criminal Courts (ubordinate to High courts or /ribunal
to record evidence or to write judgment in *nglish in certain circumstances and for certain &eriod!
(ubse>uent to that due notifications have been issued on certain s&ecific dates in order to bring
(ec!#3)8 and #3B8 into o&eration! (ubse>uent to that, re&resentations were made b$ some officers
of the (ubordinate Courts that their mother tongue was not /amil and also that the )cts &ertaining
to their Courts had not $et been translated in /amil! +n view of that a decision was ta,en in the .ull
Court of the High Court and in view of that the %egistrar of the High Court has issued the abovesaid
circular which &ermitted the officers to write their judgments in *nglish!
/he Division Bench of the High Court thought it fit to set aside the circular on the basis of
its findings that the High Court has e-ceeded the limits of the &ermission given under (ec!#B for
the reasons that it did not set an$ time limit and also that the &ermission was granted to the entire
(ubordinate judges! +t has also been observed that as &er the rules of /67(C, the officers recruited
to the (ubordinate 'udiciar$ should have fulfilled the linguistic >ualification in /amil at the time of
recruitment or within two $ears after recruitment and hence it has been concluded that there is no
im&ediment for the judges to write judgments in /amil, since the$ have ade>uate ,nowledge in
/amil!
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+n the judgement of the Division Bench of the High Court, a reference to a .ull Bench
judgment of the High Court of Madras, re&orted in 1""# 308 M:' 021, 3M!%an,a 5s (tate of /amil
6adu8 was also made! /he .ull Bench judgement of the Madras High Court negatived the &ra$ers
of the &etitioners, who challenged the constitutionalit$ of (ec!#B of /amil 6adu Official :anguage
)ct, 1"1 and related ?overnment notification and &ra$ed to declare the said &rovision as
unconstitutional and direct the (tate to reintroduce *nglish as the official :anguage of (ubordinate
Courts! +n view of the nature of the &ra$er sought b$ the &etitioner and the contentions raised b$
the &etitioners, their :ordshi& had given much focus on the legislative com&etence of the (tate to
enact the said &rovision and on the &oint whether the judicial wor, of the subordinate judiciar$ can
be termed as @official &ur&ose@ of the (tate! +t has also been contended b$ the &etitioners that since
the (ubordinate courts are under the control and su&ervision of High Court, the im&ugned
&rovisions are contrar$ to )rt!09!
/hough the writs filed before the .ull bench have been dismissed and found to be lac,ing
in merit, in m$ humble view the matter deserves still more consideration for the following reasons
which were not raised and canvassed before the Court! /hough the &ower is given to the (tates
under )rt! 9# to ado&t an$ one or more languages of its choice to be used for all or an$ of the
official functions of the (tate and as laid down b$ the .ull bench that functions of the (ubordinate
courts also one of the official &ur&oses of the (tate, the (tate can not ado&t either /amil alone or
*nglish alone as the language of the &roceedings of the (ubordinate Courts! On the contrar$, in
view of the &rovisions of )rt!90, the (tate of /amil 6adu can direct the (ubordinate Courts to have
its &roceedings or write its judgments either in /amil or in *nglish!
Because )rt!90, entitles an$ &erson who comes before an authorit$ of the Anion or the
(tate for see,ing redressal, to ma,e his re&resentations in an$ of the languages which is in use in
the said (tate or the Anion! +n the (tate of /amil 6adu though /amil is ado&ted as an official
language, *nglish is also in use in all the official functions of the (tate! /he (ubordinate 'udges are
the also authorities of the (tate, on whom a dut$ is bestowed to redress the grievances of the &eo&le
who ma,e re&resentations before them, in a judicious manner and b$ a&&l$ing the law of the land!
Hence as &er )rt!90, those &eo&le who come to court for see,ing redressal can ma,e their
re&resentations either in *nglish or in /amil! De&osing evidence before the court is also ,ind of a
re&resentation which is made to substantiate or dis&rove the stand of either &art$ in a manner ,nown
to law! +n such case, if the (tate im&oses a condition on the courts that the$ should record evidence
onl$ in /amil or onl$ in *nglish, that will be violative to the &rovisions and s&ecial rights granted to
&eo&le under )rt!90! /he rights given under )rt!90 can also be construed as an e-tension of
freedom of e-&ression, which is a fundamental right! *ven if the &eo&le come before the court ma$
be having several other languages other than /amil as their mother;tongue or native language, the$
are entitled to ma,e re&resentation onl$ in two languages namel$ /amil or *nglish! (ince in the
(tate of /amil 6adu, onl$ /amil and *nglish are in use for official functions, the right is restricted
to the usage of these two languages onl$! )nd hence this is a reasonable restriction!
But b$ im&osing further conditions u&on the officers of the (ubordinate Courts as found in
(ec! #) of the /amil 6adu (tate Official :anguage )ct 1"1, that the evidence should be recorded
b$ the courts onl$ in /amil and that the 7residing Officers should get s&ecial leave from High Court
to record evidence in *nglish, an undue im&ediment is made on the rights of the litigant &ublic, who
has got right to ma,e re&resentation in an$ of the languages used in the (tate for official &ur&oses!
(uch a cumbersome &rocedure is not contem&lated in )rt!90 for &eo&le to ma,e re&resentations
before the courts! Hence (ec!#) of the /amil 6adu (tate Official :anguage )ct 1"1 is be$ond the
&owers granted to (tate b$ the Constitution, in connection with their choice of official language, as
far as the rights of litigants are concerned! B$ wa$ of amending the said )ct and inserting sec!#)
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and #B, the (tate had im&osed unnecessar$ hurdles u&on the rights of the litigants who come to
court to see, redressal! ) &lain and clear right given to the litigants under (ec!90, has been made
com&licated and cumbersome and that can not be in the interest of justice! /he word @&erson@ used
in )rt!90, will indicate that this right is available to not onl$ citiBens of +ndia but also to non;
citiBens and hence it has a liberal object!
/he libert$ is obviousl$ for the reason that those screams that &eo&le ma,e out of &ain or
loss, can not be limited in an$ language and so he should be &ermitted to be heard in an$ of the
languages that are in use, in the Anion or the (tate! /he right is not restricted or connected with a
language which is ,nown to the litigants before court! But it is just connected with the choice that
the litigant ma,es! /o &ut it otherwise, a litigant is at libert$ to choose either /amil or *nglish to
ma,e re&resentations before the Courts, even if he ,nows or not the other language! +t is onl$ with
a view to ma,e litigants to be at more ease and comfortable before the courts, while addressing their
grievances either b$ themselves or through their counsels! But contrar$ to this, the (tate has &laced
unnecessar$ bottle;nec,s and formalities and thereb$ burdened the Courts! When Courts alread$
suffocate to clear the clog of their cabins due to heav$ &endenc$, the unnecessar$ &rocedure
&rescribed under #;) or #B of the /amil 6adu Official :anguage )ct is an additional burden to their
files! But in %an,a@s case the relevance of )rt! 90, in weighing the constitutionalit$ of (ec!#) and
#B is not &leaded before the court! +f the right of a litigant is demonstrated than the right of an
)dvocate in that case, the a&&reciation of the High Court might have been different!
/he (tate thought it fit to continue the use of *nglish :anguage for an indefinite &eriod, in
all its official functions and more &articularl$ in transacting the business of the (tate :egislature!
With a view to achieve this object, the /amil 6adu (tate :egislature 3Continuation of use of
*nglish :anguage 8 )ct 1"1# 3)ct 92 of 1"1#8 was &assed! /his is similar to (ec!9 of Official
:anguage )ct 1"19, 3as amended in 1"1<8, which gives similar o&tion to the 7arliament to use
*nglish in all the official &ur&oses of the Anion and for the transaction of business of the
7arliament! (ince the members of the 7arliament and (tate :egislature are the re&resentatives of
&eo&le the$ have an o&tion to use /amil or *nglish in order to ma,e their voice heard clearl$! When
one wing of the (tate, namel$ the legislature is allowed to use both the languages, the other wing
namel$ 'udiciar$ was not given with the o&tion to choosing the languages in accordance with and as
and how their business demands!
+n all &ra$ers made before the Court, there will be a residuar$ &ra$er re>uesting the court
to &ass a&&ro&riate order which the court might deem fit and &ro&er in the circumstances of the
case! /he &ower of a judge of a sub;ordinate court should be used cautiousl$ in ever$ turn of the
&roceedings b$ choosing the right course of action in accordance with the circumstances of the case
and also to ensure a level &la$ing field for the both the &arties and grant a&&ro&riate reliefs not onl$
at the ultimate stage, but also through out the &roceedings! )nd each of such decisions made b$ the
judge in the course and circumstances of the &roceedings will be those such further reliefs granted
b$ courts fitting to the circumstances of each case! /o choose either one of the languages that are in
use for the &ur&ose of de&osing and recording evidence is the autonom$ of the litigant &ublic and
the judge in a given situation, in accordance with their convenience and choice! B$ giving a narrow
connotation that onl$ those &eo&le who do not ,now or who are not conversant with /amil alone
have a right to de&ose evidence in *nglish and that too after getting due &ermission from the High
court b$ the concerned trial judge on their behalf, the (tate has &laced unnecessar$ burden u&on the
courts as well as the litigants! )s stated alread$ the choice of the litigant is free as &er )rt!90! +t is
not the &roficienc$ or the ,nowledge in either of the language or the Will of the (tate, which is the
test of suitabilit$ of an$ one language a&&licable in the court@s &roceedings! /here are several other
factors which need consideration in choosing a language and it ma$ change from case to case,
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&erson to &erson and circumstance to circumstance and range from &ractical to technical reasons!
)n$ narrow vision based u&on an$ emotive or commotive considerations in the subject of
languages of the courts will not be in the interest of justice!
/he &eo&le who ,noc, the doors of the courts might be even blind, deaf or dumb and for
whom neither of the languages listed in the C+;schedule is of an$ relevance! But still the$ do
communicate to court in a language or scri&t ,nown to them and the judge can not shut his ears or
tie his hands, for want of s&ecifications of the mode of recording their statements, in the &rovisions
of law! /he gestures, sound and an$ other bod$ language or even silence is also a language and it is
the trial judge who needs to decide the correct course of actions, in accordance with the
circumstances of the case! While the (tate could realise the demand of o&tions of both the language
for the effective transaction of business of the :egislature and had ta,en effective ste&s b$ &assing a
s&ecial legislation, it is unfortunate that such a &arameter was not a&&lied to the demands of the
(tate subordinate 'udiciar$! /he conditions that have been im&osed b$ virtue of sec!#) and #B are
violative of rights of &eo&le as &er )rt!90 and it causes im&ediment to the inde&endence of
'udiciar$ which endevours to render justice! /hough the (tate has the right to ma,e &rovisions to
use /amil in the 'udicial 7roceedings, considering the local &o&ulace whose onl$ ,nown language
might be /amil, it should not be in a such a wa$ to ta,e awa$ or limit the use of *nglish, even
when the &arties desire to transact in *nglish! ) &erson who is well versed in /amil or *nglish and
stand on either side of the case, can o&t to de&ose in *nglish or /amil res&ectivel$ for the reasons
,nown to him! )nd what has to be ta,en care of b$ the court is that such an o&tion of one &art$
should not be detrimental to the interest of other &art$!
+n their conscience of ta,ing the guiding disci&line as the constitutional measure, for
deciding the legislative com&etence of the (tate in the conte-t of )rt!9#, their :ordshhi&s of the
full Bench of the High Court in %an,a@s case has held that the functions of the (ub;ordinate Courts
can not be e-cluded from the official &ur&oses of the (tate though the (ub;ordinate Courts are
under the control and su&ervision of High Court and that the (tate has the &ower to &rescribe a
language to the subordinate courts! But however, there are other factors which deserve further
consideration in the matters of (ub;ordinate Courts! /hough the subordinate judges are recruited
through the (tate 7ublic (ervice Commission, the$ are under the control and su&ervision of High
Court! /he sub;ordinate judiciar$ are in fact given in ado&tion to High Court right after their birth
and it is not fair to ta,e awa$ the linguistic culture and convenience, the$ ac>uired or inherited from
their ado&ted famil$, namel$ the High court, in addition to the linguistic culture ac>uired b$ them
from their natural famil$, namel$ the (tate! )ll the judicial &recedents that have to be followed b$
the (ubordinate courts are in *nglish and their communications to High court are also in *nglish
and hence denial of o&tion to the subordinate judges to deal an$ matter before them in *nglish is not
correct!
.urther, all the )cts and %ules are in *nglish and the assent of the 7resident and the
?overnor is got onl$ on the Bills which are drafted in *nglish! /hough the$ are authenticated /amil
translations of the )cts and %ules available, the$ can be used for reference and not for reliance b$
the courts! Because the translated co&ies of )cts in /amil can not be called as )cts and %ules in the
strict sense, because the assent of the 7resident and ?overnor is not made on the /amil te-t! /he
original Bills, on which the 7resident or governor as the case ma$ be, gives his assent are the
7rimar$ document and the$ will be in *nglish! (ince the$ will be in the custod$ of the
?overnment, the authoriBed Co&ies can be used as secondar$ document and it can be relied b$ the
Courts! (ince the original )ct is in *nglish the authoriBed co&ies should also be in *nglish and
/amil translated version at an$ stretch can neither be the original &rimar$ )ct or %ules nor the
secondar$ documents in order to enable the Courts to &lace its reliance! (o, the /amil translated

version of the )cts or %ules are the wor,s of the (tate authorised translators and the$ have no
binding effect on the Courts! But however, the$ can be used for reference in the interest of justice
and to hel& the local litigants, if the$ &refer to ma,e out his case in /amil! +t can be also be used in
the literar$ conte-t to instruct the students of law, if the$ choose their medium of instruction in
/amil! )s long as the 7residents and ?overnors are a&&ointed from &ersons who hail from an$ &art
of the countr$, irres&ective of their linguistic ,nowledge or bac,ground, all the bills sent to their
assent can not be in an$ regional language, but can onl$ be in *nglish! +n view of these ground
realities, the (ubordinate Courts should also be allowed to use *nglish as well in their &roceedings,
suiting their convenience and transact their business in either of the languages, as it is so done b$
the (tate legislature!
Of all the abovesaid facts, one undeniable as&ect in writing judgment is its demand for
language! /he trial judge who hears evidence either in *nglish or /amil, &eruses documents which
might be written either in *nglish or /amil, notices the demeanor of witnesses through their bod$
language, &erusing all the &leadings either in *nglish or /amil, reading the judicial &recedents in
*nglish and rel$ing the statutes in *nglish ma$ be in demand of language either in /amil or in
*nglish in accordance to his convenience, in the course of a&&lication of facts and law in his
judgment! /he em&lo$ment of the agenc$ of a sub;ordinate judge is in no wa$ different from that
of a 'udge of a Higher Court, though he is bound to adjudicate in a different environment or in a
different jurisdiction! Hence an$ direction in the form of &rovisions of #) and #B of /amil 6adu
Official :anguage )ct, for com&ulsive a&&lication of either *nglish alone or /amil alone will not
onl$ interfere with the autonom$ of a judge but will also limit his e-&ressions and affect the clarit$
of judgment! /his confusions caused in the judgments can never be the object of the ado&tion of
an$ one or more official languages for the (tate! ) subordinate judge li,e an$ other government
servant of the state should have a ,nowledge in /amil as &rescribed in recruitment rules, in order to
effectivel$ communicate and understand the language s&o,en b$ &eo&le using /amil languagein the
(tate of /amil 6adu! But that can not be the $ardstic, to test and &resume his com&etence and
ac>uaintance in legal /amil, which is a technical language, though scri&ted in /amil letters!
.urther, the judicial officers would have studied law degree either in /amil medium or in
*nglish medium! His choice in a&&reciating the facts and law in the language comfortable to his
wa$ of conve$ance, if restricted or tested b$ com&ulsive conditions b$ offering an$ one of
languages alone, he ma$ tr$ to achieve his &roficienc$ in the said language, b$ ta,ing his test in
each case before him and that will ultimatel$ affect the >ualit$ of the judgement and also the litigant
&ublic, for whose cause the courts are established! +dentif$ing the whole of the litigants as the
litigants who ,now or wish to conve$ their cause in /amil onl$ or *nglish onl$ and &lace
restrictions or advantages to the detriment of one grou& over the other grou& is a ,ind of a
discriminator$ treatment! But unfortunatel$ in both the writ &etitions, the &etitioners have asserted
and raised their claim to onl$ *nglish and onl$ /amil as the language to be em&lo$ed in sub;
ordinate courts! 6ow that a Division Bench of the High Court of Madras has ta,en awa$ the
umbrella &ermission given to the sub;ordinate courts to write their judgments in either /amil or
*nglish! +n such case, it is difficult for the sub;ordinate judges to use a language according to their
convenience in a given circumstances and an$ such choice of them ma$ be viewed as la&se and
further it ma$ also lead to contem&t &roceedings! /his is a severe crisis now set on the subordinate
courts and that has to be resolved once for all and at the earliest! What is needed to solve the
&roblem in its entiret$ is some timel$ gentrification in the language &olic$ or formula suggested to
the business of the sub;ordinate courts! /his can be done b$ wa$ of ma,ing suitable amendments or
otherwise! )fter all, is it so difficult for an$ one to understand that language is a medium and not a
barrier for the judges of the subordinate courts in e-ecution of their judicial functionsD
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