Representational Pic

Representational Pic

A 38-year-old woman with cerebral palsy was sexually abused by a local strongman. The mother had a difficult time registering the first information report, and the young woman traumatised by the incident, despite some accommodations could not testify to the satisfaction of the trial court. The trial of the alleged offence therefore started to stall.

The mother who was representing the cause of her daughter with disability was dissatisfied with the trial procedure, as it only succeeded in retraumatising her daughter. She therefore asked that the accused be tried under the Protection of Children from Sexual Offences Act and not the Indian Penal Code of 1860. This contention was raised on the strength of the mental age of the prosecutrix. The mother claimed that the mental age of the prosecutrix was no more than eight years before the incident, but had been reduced to a mere four years, after the incident and the retraumatising trial process.

Since the Supreme Court of India, unlike the Delhi High Court,  has decided to entertain the contention, it is important to ask whether the mental age contention is the best way to obtain protection for the young woman with disability, especially as there are other alternatives, which are better suited to serve the same purpose.

To begin with, it may be necessary to clarify that unlike the manner in which the matter is presented, the decision on mental age is not as straightforward as reading temperature from a thermometer. Instead it is a deduction, which is made by measuring the deviation from standard performance expected of persons of similar chronological age. The standard performance is constructed by relying on intelligence quotient tests. These tests themselves have been subjected to criticism for the factors they include and exclude and how, contrary to lived experience, they look at human development in static terms.

The upshot of this discussion is that mental age is a disputed finding, which will not be accepted without challenge by the other side. In the aforesaid case, even if the court were to accept the POCSO contention, the prosecutrix would not be able to obtain the benefit of the ruling, at once. Mental age would remain a disputed fact, which would still have to be proved in her case. This contention and the use of POCSO would not protect the prosecutrix from invasive procedures of proof. In comparison the impairment of the woman is a long-established condition for which well-documented evidence exists.  In the light of that history, the case for the prosecutrix to obtain reasonable accommodation in the trial proceedings is clearly made out. Spoken languages, despite their dominant position, are only one of the many means of communication. In order that the prosecutrix present her case in her own voice, it is important that her unspoken language also obtains due legal recognition.

In this case, the trial court was not satisfied with the testimony of the prosecutrix because the communication was not in accord with adult spoken language. Persons with disabilities have been asserting since long that the denial of legal capacity is no more than exclusion which flows from ableist prejudice. By denying recognition to the language and method of communication used by the prosecutrix, the trial court was driven by the same prejudice. To speak of mental age, is again, to not recognise that persons with disabilities are not inferior but different minds and bodies.

For these minds and bodies to be able to participate on an equal basis with others, it is important that the dominant standard of communication is not used to exclude. Instead it is important to ensure equal access to justice by appropriately modifying the trial procedure so that the concerns of the person with disability are reasonably accommodated and they are neither infantilised nor disenfranchised. After a long struggle of 50-plus years, persons with disabilities were able to drive their own fate, by having the United Nations adopt the Convention on the Rights of Persons with Disabilities in 2006. In this Convention, which India ratified in October 2007, language has been defined to include spoken, signed and non-spoken languages and the definition on communication recognizes all means, methods and formats of communication. The Convention requires State parties to recognise that persons with disabilities enjoy legal capacity in all aspects of life on an equal basis with others. Article 12(3) places an obligation on all State parties to take appropriate measures to provide access to persons with disabilities to the support they may require to exercise their legal capacity.

On a joint reading of these articles, it can be contended that the prosecutrix in exercise of her legal capacity was entitled to testify in the mix of spoken and non-spoken language with the support of an interpreter. The prosecutrix perception of the world has to be viewed in its own terms and not diminished by comparison. If as an adult with disability she is not enabled to present her version of the events she is being discriminated on the basis of disability, which has been prohibited by the Convention.

The accused sexually abused a person with disability and hence has to be prosecuted by a procedure which is inclusive of the prosecutrix be it in the manner in which she testifies or the place where she is examined. Such modification does not compromise his right to a fair trial. He cannot take advantage of his own wrong by seeking the application of a disability unfriendly procedure when the victim of the crime is a person with disability.

The High Court just rejected the application for the activation of POCSO. It did not concern itself with the entitlements of the prosecutrix as a woman with disability. It is hoped that the Supreme Court as the apex court of the country would not limit the matter only to the application of POCSO. Especially as its decision in the matter would be the law of the land and not just be limited to the parties before it.

The Supreme Court in Vishaka and a number of other decisions has held that the positive obligations of International Human Rights being in harmony with the fundamental rights can be applied in the country, without the enactment of a domestic legislation. It is hoped that in the upcoming hearings in the Supreme Court the matter is not seen as affecting  a particular woman with disability alone. Instead the Court draws upon the Indian Constitution and the Disability Rights Convention to draw up a trial procedure which both protects the dignity and supports the exercise of agency by all women with disabilities.