Courtroom Language and Article 19(1)(a)
| Date | 01 December 2019 |
| DOI | 10.1177/2277401720917535 |
| Author | Shrutanjaya Bhardwaj |
| Published date | 01 December 2019 |
| Subject Matter | Articles |
ArticleArticle
Courtroom Language
and Article 19(1)(a)
Shrutanjaya Bhardwaj1
Abstract
Many would agree that the State should try to ensure that the language used
in its courtrooms is one that its subjects understand. The question is whether
the subjects can claim this as a matter of right—specifically, as part of the right
to free speech. Using the philosophical justifications of the freedom of speech,
I argue that Article 19(1)(a) of the Indian Constitution assures a right to the
litigant to communicate with the court in her own language. Even though the
right may be restricted under Article 19(2), or even otherwise if it comes
into conflict with another fundamental right, its threshold recognition under
Article 19(1)(a) is significant to ensure a disciplined inquiry into the constitutional
validity of official courtroom languages.
Keywords
Access to justice, Article 19(1)(a), court proceedings, courtroom, Free Speech,
freedom of expression, freedom of speech, Fundamental Rights, official language,
positive obligation
Introduction
Many would agree that the State should try to ensure that the language used in its
courtrooms is one that its subjects understand. The question is whether the subjects
can claim this as a matter of right. Language rights can be viewed in many ways:
they could be characterised as equality rights, aimed at reducing the disparate
Journal of National
Law University Delhi
6(2) 126–143, 2020
© 2021 National Law
University Delhi
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DOI: 10.1177/2277401720917535
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1 Consultant (Research), Centre for Communication Governance, National Law University, Delhi,
India.
Corresponding author:
Shrutanjaya Bhardwaj, Centre for Communication Governance, National Law University, N-11, 3rd
Floor, Jangpura Extension, New Delhi, Delhi 110014, India.
E-mail: shrutanjaya@gmail.com
Bhardwaj 127
effects of language laws on citizens;1 they could also be viewed as cultural rights,
whether designed to protect all groups generally or minorities specifically;2 or
they could be viewed as forming part of the right to freedom of speech and
expression. In this article, I adopt and argue in favour of this last view.
Context
The context for this article is a recent judicial order. Earlier this year, the Delhi
High Court was faced with a writ petition challenging the existing Delhi High
Court Rules on the ground, inter alia, that they violated the right to free speech
and expression by not permitting petitions to be filed in the Hindi language.3
The Court dismissed the writ petition without substantively engaging with the
Article 19(1)(a) question.4 As indicated earlier, I believe this was erroneous.
Scope of Inquiry
Under the Indian Constitution, Article 19(1)(a) guarantees to all citizens the right
to free speech and expression,5 and because this right ought to not be absolute,
Article 19(2) prescribes a three-part test under which the right may validly be
restricted by the State: (a) the restriction should be provided by a law; (b) the
restriction should be linked to one of the nine grounds listed in Article 19(2); and
(c) the restriction should be ‘reasonable’.6 Therefore, every inquiry concerning
the right to free speech raises two fundamental questions:
1. The threshold question: is the act in question properly characterised as
‘speech’ or ‘expression’ for the purposes of Article 19(1)(a)?
2. The justification question: do the restrictions placed on the act comply
with the three-part test contained in Article 19(2)?
This article is concerned only with the threshold question. The limited scope of
inquiry here is whether Article 19(1)(a) protects within its ambit the right of
a citizen to have courtroom proceedings conducted in her own language, that is, a
language she comfortably understands.
1 Leslie Green, Freedom of Expression and Choice of Language, in ethical issues: PersPectives for
canadians 135–52 (leslie Green, 2nd ed. 1997); G. Andrdssy, Freedom of Language: A Universal
Human Right to be Recognised 19(2) int j Minor GrouP riGhts 195 (2012); Fernand de Varennes,
Language and Freedom of Expression in International Law 16(1) huMan riGhts Quart, 163 (1994).
2 Tove Skutnabb-Kangas, Linguistic Human Rights, in the oxford handbook of lanGuaGe and law
235–47 (Peter M. tiersMa & lawrence M. solan, eds. 2012); Xabier Arzoz, The Nature of Language
Rights 6 jeMie, 2 (2007).
3 D.K. Chopra v. Registrar General Delhi High Court, Writ Petition (Civil) No. 5899/2019.
4 Id., Order dated 27 May 2019.
5 india const. art.19(1)(a).
6 Id. art.19(2).
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