There can be no difference of opinion with regard to the claim that the language of courts should be the language which people can understand namely, as far as. practicable. their mother-tongue.
Even in 1956, the state of Tamil Nadu passed the Madras Official language Act, 1956 (XXXIX of 1956), which received the assent of the Governor on the 19th January 1957, to provide for the adoption of Tamil as the language to be used for the Official purpose of the state of Madras. The preamble refers to the constitution of India as enabling the Legislature of a state by law to adopt any one as more of the languages in use in the state as the language to be used for all or any of the official purpose of the state. Obviously. the reference is to Article 345 of the Constitution, though the number is not mentioned in the preamble. Section 2 of the Act provides that the official language of the state of Madras (P Tamil Nadu) shall be Tamil. Notwithstanding that, section 3 provides that English language shall continues to be used for all the official purpose of the state for which it was being used before the commencement of that Act until the State Government, by notification under section 4, otherwise direct in respect of any official purpose specified in such notification section 4 enables the Government to issue notifications from time to time and direct that Tamil shall be used in respect of such official purpose as may be specified in the notification.
Under section 5, the language to be used in Bills, Acts, ordinances or orders, rules, regulations and bye-laws etc, shall be Tamil from such date as the Government may appoint.
[This Act not only provides for adoption of Tamil as the language to be used for official purpose but also declares Tamil as the language of Courts, sub-ordinate to High Court for recording evidence in all proceedings by inserting section 4 A by bringing an Amendment to the Act in 1976 (TN Act 41 of 1976) and section 4 B declaring Tamil as the language of Courts, Sub-ordinate to High Court for writing Judgements and decrees and orders by bringing an Amendment to the Act in 1976. (TN Act 41 of 1976).]
The state passed another legislation called the Madras State Legislature (Continuance of use of English Language) Act, 1964 (Act 38 of 1964) providing for the continuance of the English language for the transaction of business in the legislature of the State of Madras, notwithstanding the expiration of the period of fifteen years from the Commencement of the Constitution of India. In exercise of the powers conferred under section 4 of Act XXXIX of 1956, the state government assured a notification in G.O.Ms.No.5630 of 1969, Public (Tamil Development-1) dated 13th November, 1969. The Notification referred also to section 137 of the Code of Civil procedure. Under that Notification, Tamil language was officially adopted as the Court language in the subordinate courts and came into force on 14th January, 1970. Under the express terms of the notification. Tamil was to be used by the subordinate courts only for recording evidence.
The state came under President’s Rule by virtue of a proclamation issued under Article 356 (1) of the Constitution on 31.01.1976. Under that proclamation the President of Indian assumed to himself all functions of the Government of the state and all powers vested in or exercised by the Government. By virtue of clause (a) of the proclamation, subject to president’s Superintendence, direction and control, by exercisable also by the Governor of the State.
The Parliament passed an enactment called the Tamil Nadu State Legislature (Delegation of powers) Act, 1976 (hereinafter referred to as “Central Act 41 of 1976” in March, 1976, conferring on the President, the power of the State Legislature to make laws. That Act received the Assent of the President on 22.03.1976.
By virtue of the power conferred by the aforesaid Act, the President enacted- Tamil Nadu Official Language (Amendment) Act, 1976 ( 41 of 1976) amending the provisions of the Tamil Nadu Official Language Act, 1956. The Amendment Act provides for the insertion of Section 4A and 4B in the Act of 1956.
The two sections read as follows:-
- Section-4-A:- Declaration of Tamil as the language of courts for recording evidence in all proceedings.
- Section 4-B: Declaration of Tamil as the language of courts for writing judgments, decrees and orders.
The said Act came into force on 12.11.1976. Acting under section 4-B, the State Government made an order G.O.Ms.No. 191, Law, dated 13 November, 1976, making Tamil the language in which judgments. Decrees and orders are to be written by the subordinate criminal courts.
The proclamation under Article 356 of the Constitution relating to the state expired on 30.06.1977. But before the said date, when the proclamation was in force. the Parliament passed the Constitution (Forty-Second Amendment) Act, 1976.
It has to be noted that the amendment of the constitution came into force when the proclamation of emergency was in operation, with the result. the Act passed by the president viz., the Tamil Nadu Official Language (Amendment) Act, 1976, would continue in the force inspite of the expiration of the proclamation until altered or repealed or amended by a competent legislature or other authority. This Act was placed before the Council of States on 20.06.1977 and before the Council of States on 20.06.1977 and before the House of people on 22.06.1977 and thus it had received the approval of both the Houses of the parliament.
Under Section 4-8(2) of the Tamil Nadu Official Language Act, the State Government is empowered to notify the date or dates from which the provisions of sub- section (1) of that section shall come into force. In exercise of the said powers. The State Government issued a notification in G.O.Ms.No.9, Law dated 18 January, 1982 appointing the 1 day of February, 1982 as the date on which the provisions of sub- section (1) of section 4-B of the Tamil Nadu Official Language Act shall come into force in respect of (i) Civil Courts subordinate to the High Court; (ii) Tribunals and (iii) Rent courts and Revenue courts. The same was placed before the State Legislative Assembly on 23.03.1982.
The provisions in the Code of Civil procedure and the Code of Criminal procedure, which have been in existence even prior to the advent of the Constitution of India. Section 137(1) of the Code of Civil procedure provided that the language, which on the commencement of the code was the language of any court, shall continue to be the language of such subordinate court until the local Government otherwise directs.
- Under clause (2), the local Government was empowered to declare what shall be the language of any such court and in what character applications to and proceedings in such courts shall be written.
- Under clause (3), where the code requires or allows anything other than the recording of evidence to be done in writing in any such court, such writing may be in English. but if any party or his pleaders is unacquainted with English a translation into Use the language of the court shall as his request, be supplied to him.
The word “local” appearing in clauses 91) and (2) was substituted by the word “State” in 1950 after the passing of the constitution.
- Section 138 of the Code of Civil Procedure empowered the local Government to issue a notification in the local official gazette directing with respect to any Judge specified therein or falling under a description set forth therein to take down evidence in English language and in the manner prescribed in cases in which an appeal was allowed.
The words “Local Government” were substituted by the words “High Court” by Act 14 of 1914. The words “Local Official Gazette” were substituted by the words “Official Gazette” in 1937.
The Criminal Procedure Code of 1898, Section 218(2), 221(6), 265(1), 356, 357. 367 and 372 contained provisions relating to the language of Court and the use of English with respect to matter specified therein.
- Section 558 of that code enabled the State Government to determine what shall be deemed to be the language of each court within the territories administered by such Government, oiner than a High Court of Part A State as part B state for the purpose of the code.
In the Criminal Procedure Code of 1973 (Act 2 of 1974). Section 265 provides that every record of the substance of the evidence in a case filed and summarily and judgment therein shall be written in language of the court.
- Section 272 empowered the state Government to determine. for the purpose of the code, the language of each court within the state other than the High court.
- Section 277 related to the language of record of evidence.
- Section 354 provides that except as otherwise expressly provided by the court, every judgment referred to in section 353 shall be written in the language of the court.
- Section 4 A and 4B contain a non obstante clause by which they are given overriding effect as against the provisions in section 2 to 4 of the said as well as the Code of Civil Procedure and the Code of Criminal Procedure.
- Article 210: The language to be used in the State Legislatures.
- Article 120:- Language to be used in parliament.