Uma Pareek, is a 4th year student at Dharmashastra National Law University, Jabalpur.
Abstract
The article focuses on the struggles of deaf people in gaining equal access to justice worldwide, particularly in the context of India. It analyses persistent barriers that prevent deaf and mute people from accessing justice despite robust legal protections under international and domestic law. At every stage of the criminal justice process, there are barriers to fair participation, such as communication barriers, a lack of trained personnel, a shortage of sign language interpreters, and an absence of procedural safeguards. The article advocates for institutional reforms, mandatory training, technological innovations, and more stringent legal guidelines to give meaningful and equal access to justice.
Introduction
193 countries have ratified the United Nations Convention on the Rights of Persons with Disability [“UNCRPD”]. Article 13 of the UNCRPD requires states to ensure equal access to justice for disabled people, including both procedural and age-appropriate accommodations. Equal access to justice procedurally includes assistance: administratively, legally and technologically throughout the legal process from the pre-investigation stage to trial and prison. However, the promise of equal access to justice remains practically unimplemented across the globe in its full spectrum. Countries like India have adopted the UNCRPD and introduced the Rights of Persons with Disabilities Act [“RPwD Act or the Act”] in 2016. But the Act is far from providing equal access to deaf and mute people.
The Author argues that the present system is inadequate to accommodate the needs of deaf and mute individuals. Later, the author puts forth suggestions to realise the rights guaranteed.
Problems Plaguing the Existing System.
Absence of Law is not the problem; rather, it is the ignorance of almost 2 million people in India. India has adopted the UNCRPD and other conventions like the United Nations Convention on Economic, Social, and Cultural Rights [“ICESCR”] and the Universal Declaration of Human Rights [“UDHR”]. The RPwD Act in India provides Sections 3, 12 and 13, which lay down the right to equality, access to justice and the same legal capacity for the disabled as for other people. However, society and the legal system, i.e. the adversarial system, were not designed keeping in mind the deaf, thus hampering active participation for the deaf in society and challenging rights recognised not only in international conventions but also constitutional rights.
Access to the justice system includes many barriers, beginning with communicating in emergencies. If the deaf individual is a victim in an emergency, he/she needs to report the crime to the police. However, a deaf individual faces difficulty because the most common method of communication is an audio call to the police station on a common number. A deaf individual cannot make a call, and this becomes a big obstacle. A very basic need of contacting the police machinery in an emergency in today’s society has not been designed keeping in mind the deaf. Further, a lack of adequate training for the police and delays in obtaining interpreters lead to challenges in effective communication of the offence. Research in Northern Ireland revealed that there is a high level of underreporting because of the communication barrier, and legal professionals with 30+ years of experience had no experience of working with a deaf individual. Similarly in India, there is no infrastructure in courts, legal aid offices and police stations to accommodate the special needs of persons with disabilities. Many Police personnels and civilians do not even know how to book a sign interpreter. Additionally, courts require a week or two’s notice to obtain a sign interpreter, and some even assume that only one interpreter is enough, despite the lack of a uniform sign language. Later in the trial proceedings, their active participation is not quite possible. There are no legal rules to regulate their witness statements, and it is difficult for the deaf witness to face the judge, counsel and interpreter at the same time. The report highlighted a case where a deaf person got a heavier sentence due to a misinterpretation by the interpreter. The deaf accused was apologising, showing remorse by saying sorry, and the interpreter showed it as an admission.
The model of protection of the rights of deaf individuals views deaf people as objects of charity and people who are tragic victims. But deaf and mute individuals can also be accused of a crime and be perpetrators. This gives rise to a series of problems not addressed in the justice system. The gap in regulating deaf and mute people accused of a crime has also been highlighted in the case of Ramnarayan Manhar v. State of Chhattisgarh. The court expressed that there are no clear guidelines for trials of deaf and mute persons accused of heinous offences. Difficulties that a deaf person faces include their inability to understand the charges and their severity, and thus violating their constitutional right under Articles 21and 22 in India. There is no answer in the current legal framework to questions like: how can police effectively communicate the grounds for arrest, the obligation to ensure a deaf person communicates with their legal counsel, and what are the specific considerations for bail decisions?
Many European countries, especially Sweden and Finland, are among the most inclusive for deaf people because public institutions actively work to make their services accessible. For example, courts in Sweden are responsible for ensuring accessibility, and the government fully funds sign language interpreters. Technology has also made it easier for deaf people to access interpreter services in their daily lives.
Emma Peasgood, in her study on inclusivity for deaf children in Sweden and Finland, found that interpreter access in Finland is highly developed. Deaf people can use interpreter services not only for essential purposes but also for leisure activities, unlike in many other countries. The success of Sweden and Finland lies not in creating new legal rights, but in effectively implementing the rights that already exist.
India’s legal framework embodies similar values as the law of Sweden and UNCRPD, such as inherent dignity. However, what remains essential is the institutionalised implementation of the rights that already exist. The way forward for India is that it must ensure that there is adequate awareness about the needs of deaf and mute individuals among police personnel, legal counsel, and the judiciary. The state must mandatorily provide training to officials (police, hospital staff, schools, judicial clerks and judges) to deal adequately with deaf people and accommodate them. Alongside, the government should subsidise costs for booking an interpreter and streamline the process, making it easy and more accessible. However, this is not enough, as there were only about 250 certified sign language interpreters in India, translating for a deaf population of between 1.8 million and 7 million approximately in 2017. Calling down an interpreter to the scene causes delays. Hence, in the era of technology, states must ensure that technology is effectively used to accommodate deaf people more. Easy-to-use, cost-efficient technology that can be used by anyone to interpret sign language will enlarge the participation of deaf people in society. Recently, DeafTawk is trialling an avatar (AI) interpreter,and many startups are providing app-based interpretations for sign language with funding from interested organisations. Lastly, the legislature should frame stringent laws regarding special obligations of police and judges when a deaf person is on trial to ensure a fair trial and equal access to justice.