A District Judge in the late 1950s, out of love for the Tamil language, wrote his judgment in Tamil. To his misfortune, the order was set aside by the High Court solely on the ground that no judge could write judgments in any language other than English. While judges in the State are now attempting to provide Tamil translations of judgments, the Patna High Court recently told a lawyer to argue in English or get out.
However, in 1976, the Tamil Nadu Official Languages Act was amended to introduce Section 4-B, which mandated Tamil as the court language for all courts subordinate to the High Court. Subsequently, in 1995, a full bench of the Madras High Court upheld the State’s adoption of Tamil as the official language, including its use within the courts.
If any member of the district judiciary was unable to write judgments in Tamil, s/he was required to seek permission from the Chief Justice. During the tenure of Chief Justice Swamy, who hailed from Karnataka, instead of granting such requests on a case-by-case basis, he issued a blanket exemption allowing the district judiciary to write judgments in whichever language they saw fit. This omnibus order was later set aside by a division bench.
However, the position regarding the High Court remains different. Under Article 348 of the Constitution, the language of the High Court is English. By sub-clause (2) of the same Article, the Governor of a State, with the previous consent of the President, can authorise the use of Hindi or any other language in the proceedings of a High Court having its principal seat in that State.
But the proviso to the said Article exempted this facility in respect of any judgment, decree, or order passed by the High Court. This means that, notwithstanding the additional usage of the state language, judges must still pronounce their final orders only in English.
In 2006, under the Chief Ministership of Kalaignar Karunanidhi, a request was made to the High Court to permit the use of Tamil as an additional language of the High Court, as provided under Article 348(2). While that request was accepted by a full court of the Madras High Court, the Government of India nonetheless declined to grant permission for such additional usage. Similar requests made by Karnataka, Odisha, and West Bengal were also refused, despite the existing constitutional provision in this regard.
When certain lawyers before the Madurai High Court sought to argue in Tamil, one judge refused to hear them, citing the constitutional provision. This led to an agitation by a group of lawyers, which took the issue even to the court of Chief Justice Sanjay Kishan Kaul. In that instance, a sit-in protest was staged, eventually leading to contempt action against them. When Chief Justice Ranjan Gogoi announced in 2019 that all Supreme Court judgments would be translated into five languages (later increased to eight) for the convenience of litigants, there was initial euphoria. This slowly died down, however, because few were able to read translated orders that sometimes exceeded 1,000 pages.
But can the court, notwithstanding these developments, deliver its judgments in English while also providing a translated copy in Tamil for the understanding of the litigants? The first instance of a court permitting such a practice in the Madras High Court occurred in August 1992. When Pazha Nedumaran and Dr S Ramadoss moved a writ petition against the Union of India regarding the forcible eviction of Tamil refugees to Sri Lanka without their consent, Justice M Srinivasan passed an order restraining the Government of India.
He stated that no refugee could be sent back without their consent, which had to be expressed before a representative of the United Nations High Commissioner for Refugees (UNHCR). At that time, the senior counsel appearing for the petitioners explained to the court that refugees could not express an informed refusal without reading the terms imposed by the High Court.
He argued that the court order must be translated into Tamil and provided to each refugee, allowing them to read it before concluding whether they wished to return to Sri Lanka. The court ruled that a copy of the order should indeed be translated into Tamil and circulated across all refugee camps (W.P. No. 17372 / 1992 dt. 27.8.1992).
Following the circulation of that order, not a single refugee expressed consent to return, disputing the claims made by the GOI that they all wished to go back to Sri Lanka. It was the translated version of the court order in Tamil that enabled the potential refugees to understand their rights and express their opinions before forced repatriation. In the history of the High Court (established in 1862), this marked the first time an official Tamil translation of a judgment was circulated to the beneficiaries.
Thulasi is an Advocate, Madras High Court