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Testimony Of Disabled Witness Cannot Be Considered Weak Or Inferior: SC Issues Guidelines To Make Criminal Justice System More Disabled-friendly

LIVELAW NEWS NETWORK
28 April 2021 3:44 AM GMT
Testimony Of Disabled Witness Cannot Be Considered Weak Or Inferior: SC Issues Guidelines To Make Criminal Justice System More Disabled-friendly
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The Supreme Court, in a judgment delivered on Tuesday, issued guidelines to make criminal justice system more disabled-friendly.

The testimony of a prosecutrix with a disability, or of a disabled witness for that matter, cannot be considered weak or inferior, only because such an individual interacts with the world in a different manner, vis-à-vis their able-bodied counterparts, the bench comprising Justices DY Chandrachud and MR Shah observed.

While changes in the law on the books mark a significant step forward, much work still needs to be done in order to ensure that their fruits are realized by those for whose benefit they were brought, the bench said while issuing following guidelines.

  1. The National Judicial Academy and state judicial academies are requested to sensitize trial and appellate judges to deal with cases involving survivors of sexual abuse. This training should acquaint judges with the special provisions, concerning such survivors, such as those outlined above. It should also cover guidance on the legal weight to be attached to the testimony of such witnesses/survivors, consistent with our holding above. Public prosecutors and standing counsel should also undergo similar training in this regard. The Bar Council of India can consider introducing courses in the LL.B program that cover these topics and the intersectional nature of violence more generally;
  2. Trained special educators and interpreters must be appointed to ensure the effective realization of the reasonable accommodations embodied in the Criminal Law Amendment Act, 2013. All police stations should maintain a database of such educators, interpreters and legal aid providers, in order to facilitate easy access and coordination;
  3. The National Crimes Record Bureau should seriously consider the possibility of maintaining disaggregated data on gender-based violence. Disability must be one of the variables on the basis of which such data must be maintained so that the scale of the problem can be mapped out and tailored remedial action can be taken;
  4. Police officers should be provided sensitization, on a regular basis, to deal with cases of sexual violence against women with disabilities, in an appropriate way. The training should cover the full life cycle of a case involving a disabled survivor, from enabling them to register complaints, obtain necessary accommodations, medical attention and suitable legal representation. This training should emphasize the importance of interacting directly with the disabled person concerned, as opposed to their care-taker or helper, in recognition of their agency; and
  5. Awareness-raising campaigns must be conducted, in accessible formats, to inform women and girls with disabilities, about their rights when they are at the receiving end of any form of sexual abuse.

Background

The bench was considering the appeal filed by the sole accused tried for the offences punishable under Section 376(1) of the IPC and under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act for committing rape on the victim girl who is aged about 20 years and blind by birth, on 31.03.2011 at about 9:30 AM in her house. The High Court had affirmed the conviction of the accused by the Trial Court on these charges.

Legal personhood of persons with disabilities cannot be premised on societal stereotypes of their supposed "inferiority"

The court noted that, in this case, the defense sought to cast doubt on the testimony of the prosecutrix by arguing that she would have been unable to identify the accused due to her disability.

Referring to a judgment in Mange v. State of Haryana [AIR 1979 SC 1194], the court said that there have been instances where the testimony of a disabled prosecutrix has not been considered seriously and treated at an equal footing as that of their able-bodied counterparts.

"One such instance is the judgment of this Court in Mange v. State of Haryana , where the testimony of a thirteen year-old girl who was deaf and mute was not recorded and the conviction was confirmed on the account of an eye witness and supported by medical evidence. This Court in affirming the conviction noted that the non-examination of the prosecutrix was not a major infirmity in the prosecution's case "apart from being a child witness, she was also deaf and dumb and no useful purpose would have been served by examining her." We are of the considered view that presumptions of such nature which construe disability as an incapacity to participate in the legal process reflect not only an inadequate understanding of how disability operates but may also result in a miscarriage of justice through a devaluation of crucial testimonies given by persons with disabilities. The legal personhood of persons with disabilities cannot be premised on societal stereotypes of their supposed "inferiority", which is an affront to their dignity and a negation of the principle of equality...


...This kind of a judicial attitude stems from and perpetuates the underlying bias and stereotypes against persons with disabilities. We are of the view that the testimony of a prosecutrix with a disability, or of a disabled witness for that matter, cannot be considered weak or inferior, only because such an individual interacts with the world in a different manner, vis-a-vis their able-bodied counterparts. As long as the testimony of such a witness otherwise meets the criteria for inspiring judicial confidence, it is entitled to full legal weight. It goes without saying that the court appreciating such testimony needs to be attentive to the fact that the witness' disability can have the consequence of the testimony being rendered in a different form, relative to that of an able-bodied witness. In the case at hand, for instance, PW2's blindness meant that she had no visual contact with the world. Her primary mode of identifying those around her, therefore, is by the sound of their voice. And so PW2's testimony is entitled to equal weight as that of a prosecutrix who would have been able to visually identify the appellant."


The court finally set aside the conviction of the accused under Section 3(2)(v) of the SC and ST Act but upheld the conviction and life sentence punishable under Section 376 IPC.

Case: Patan Jamal Vali vs. State of Andhra Pradesh [CrA 452 of 2021]
Coram: Justices DY Chandrachud and MR Shah
Counsel: Adv Harinder Mohan Singh,
Citation: LL 2021 SC 231

Click here to Read/Download Judgment









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