BY MOHAMMAD IMRAN KHAN
In a recent visit to one of our district courts in Jammu and Kashmir, I was struck by a disconcerting observation that demands our attention. As an attendee of a court hearing, I anticipated that the proceedings would be conducted in local/regional language. However, to my surprise, the court session unfolded predominantly in English.
The presiding judge delivered comments in the English, while the lawyers on both sides engaged in a mix of Urdu and English during their conversations. Amidst this linguistic jumble, the litigant found himself in the witness stand, perplexed and utterly reliant on lawyers who would later interpret the proceedings.
It is no secret that lawyers' fees often hinge on the number of court hearings, creating a potential incentive to prolong cases. Furthermore, due to the language barrier, crucial nuances and details may be lost in translation, leaving ample room for interpretation in favour of the lawyers' interests. This situation raises concerns about the fairness and efficacy of our legal system.
The litigant has a fundamental right to participate in the courtroom proceedings and has the right to speak in a language they understand before the magistrate, as the right to justice conferred by the Constitution of India under Article 21. Furthermore, this also encompasses the right to understand the court proceedings.
It is essential to recognise that the language used in court proceedings plays a significant role in ensuring that justice is served. When individuals, like the litigant in this case, are unable to comprehend the language spoken in court, their ability to effectively participate in their own defence is compromised. Language barriers violate a fundamental right to justice for its citizens. This disparity creates an imbalance of power and undermines the principles of a fair trial.
This issue is not unique to court proceedings in Jammu and Kashmir alone but is a widespread concern across the country. Article 348(1)(a) of the Constitution of India states that all proceedings in the Supreme Court and in every High Court shall be in the English language.
Clause (2) of Article 348 of the Constitution states that notwithstanding anything in sub-clause (a) of clause (1), the Governor of a State may, with the previous consent of the President, authorise the use of Hindi Language or any other language used for any official purposes of the State in proceedings in the High Court having its principal seat in that State.
States like Uttar Pradesh, Bihar, Rajasthan, and Madhya Pradesh have already authorised the use of Hindi in proceedings before their respective high courts.
The Government of India had received proposals from the Governments of Tamil Nadu, Gujarat, Chhattisgarh, West Bengal, and Karnataka to permit the use of Tamil, Gujarati, Hindi, Bengali, and Kannada in the proceedings of their high courts, respectively, and those proposals have however been declined.
The language used in the proceedings of the subordinate courts follows the same as the high court, but the State may declare any regional language as an alternative. The Government of Haryana amended the Haryana Official Languages Act 1969 to make Hindi the official language in lower courts.
Almost all other states have a significant population that can read and write in their local languages other than English, suggesting that an alternative is possible.
However, the peculiarity in the case of Jammu and Kashmir is the limited proficiency in reading and writing in local languages. Until 2020, Jammu and Kashmir's official language was Urdu, a foreign language not spoken as a mother tongue.
The Jammu and Kashmir Official Language Act 2020, passed in Parliament, gave Jammu and Kashmir five official languages – Kashmiri, Dogri, Urdu, Hindi, and English. This is a welcome step, but the issue remains as many in the Kashmir valley do not know how to write and read Kashmiri.
A similar situation exists in predominantly spoken Dogri in Jammu regions and Gojri/Pahari in the hilly regions of both Kashmir and Jammu divisions.
The reason behind this is that the medium of instruction in the schools was Urdu and in the early 2000s, the medium of instruction changed to English.
Kashmiri was among the first languages included in the 8th schedule of the Indian Constitution in 1950, and later Dogri in 2003. It is surprising to many that Kashmiri in the Kashmir valley and Dogri in the Jammu region were only introduced into the school curriculum in the early 2000s as compulsory subjects in elementary and middle school and optional in secondary education.
The loss of generational linguistic knowledge has resulted in generations of state residents who cannot read or write in their mother tongue. This not only hampers effective communication but also erodes cultural identity and heritage.
Witnessing the scene during my PhD days at the Centre for Development Studies in Trivandrum, Kerala, where the locals gathered at the tea stalls, in the early morning, engrossed in reading local language Malayalam newspapers, was a stark reminder of the disconnect experienced by residents of Jammu and Kashmir.
There are no such sightings in the state of Jammu and Kashmir where we don’t have local language newspapers, and available newspapers are in either Urdu/Hindi or English.
To address these issues, it is imperative that our legal system takes steps to ensure equal access and understanding for all citizens of the state. Implementing measures such as providing professional interpreters, employing bilingual judges, and promoting the use of local languages in court proceedings can significantly mitigate the language barriers faced by litigants.
The Government of India is keen on the usage of local regional languages in court proceedings. Several initiatives have been undertaken to address the language barriers in court proceedings, including the translation of court proceedings and documents into local/regional languages.
However, it is important to recognise that mere translations may not suffice in Jammu and Kashmir, given the reliance on Urdu/Hindi/English languages. While translation may offer an interim solution, it is crucial to invest in the long-term infrastructure for local regional languages and provide due recognition to retain our rich cultural heritage.
By acknowledging and rectifying the language disparities within our courts, we can enhance the integrity of our legal proceedings and uphold the principles of equality and fairness. It is our collective responsibility to ensure that every individual, regardless of their linguistic background, can fully comprehend and engage with the judicial process.
It is time for our legal community and policymakers to address this issue promptly and proactively, safeguarding the rights of all individuals who enter our courtrooms. Let us strive for a legal system that serves justice impartially, irrespective of the languages spoken within its hallowed halls.
Mohammad Imran Khan, PhD, Assistant Professor, NMIMS, Mumbai and can be reached at: imranwahid41@gmail.com
DISCLAIMER: The views and opinions expressed in this article are the personal opinions of the author.
The facts, analysis, assumptions and perspective appearing in the article do not reflect the views of GK.
