Explained: How linguistically speaking Causes Miscarriage of Justice

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Linguistically Speaking : As per Article 348 of the Constitution, all Supreme Court and High Court proceedings are conducted in English. This is in spite of the fact that India has no official national language, and a wide range of over 19,500 mother tongues spoken across the country (although the 2001 Census categories it into 122 Mother Tongue Categories).

Linguistically Speaking : Even though ours is not a pure Common Law setup, the diversity of facts presented with each case ensures that the judiciary develops with each adjudication. This piece intends to analyse one such case through its journey in the Trial Court and then the High Court of Madras: Prema v. State and Ors (Spl.S.C.No.21 of 2017).

Facts of the Case

The case is about a 2 years and 9 month old infant, who was sexually assaulted by a neighbour. The victim’s mother was on her way to buy food and the child was crying. The accused, who was sitting in his courtyard at the time, told the mother to leave the child with him, which she did. Upon returning home after half an hour, she could not find the child and on calling her name, the accused led her out by hand. 

Later that day, the child complained of pain in the private parts. On removing her garments, her mother noticed whitish liquid like semen present on her. The mother informed her husband, who was out of station at the time. She also informed the other neighbours about the happenings. 

The next day, the victim complained of pain again and was also running a fever, upon which her mother informed their relatives and rushed the child to the hospital. The doctor treating her stated that she had been sexually assaulted and the same was communicated to the Police, who recorded a statement. The victim, barely 3 years old, did not make any statement (and it is unclear if the police or court asked her to). It was her mother who acted as the first informant in the case. 

A case was filed for aggravated sexual assault under Section 10 of the Proection of Children from Sexual Offences Act 2012 (POCSO), and was heard before a Fast Track Special Court. The Judicial Officer, after hearing the arguments advanced on either side, acquitted the accused, stating that the prosecution had failed to prove the case beyond reasonable doubt. Consequently, the mother of the victim child filed an Appeal before the Madras High Court. 

The High Court overturned the acquittal and found the accused guilty, sentencing him to 5 years of rigorous imprisonment under Section 10 of the POCSO Act, along with a fine of Rs. 5000/-. The Court also directed payment of compensation of Rs. 1,00,000/- to the victim child. 

Analysis

The Semen - Semman Contention

What stood out most in the Trial court verdict was the confusion between the English word Semen and the Tamil Word Semman, meaning red soil. 

The mother of the victim had her statement recorded to the police inspector, wherein she simply stated a “white colour liquid” (Para 13). The inspector recording the statement then wrote “Seman”, a minor misspelling of the word for which neither the victim nor her mother could be blamed. When evidence was presented at trial, the typist misinterpreted the word “Seman” and typed out “Semman”, which translates to laterite soil or red soil. Neither the prosecutor, nor the victim’s counsel, or the trial judge noticed this error at the time. And so during arguments the defence used this point to contend that the mother’s testimony only proved that there was red soil and not semen found on the private parts of the victim. 

This argument was, surprisingly, accepted by the judge, and was a major ground for the acquittal, in spite of what the victim’s mother had said and what the police report stated (seman). Fortunately, the High Court saw through this folly of the typist, and considering the victim’s mother’s statement as well as the medical evidence provided by the doctor, set the record straight. However, it leaves open a larger door, linguistically speaking. 

As per Article 348 of the Constitution, all Supreme Court and High Court proceedings are conducted in English. This is in spite of the fact that India has no official national language, and a wide range of over 19,500 mother tongues spoken across the country (although the 2001 Census categories it into 122 Mother Tongue Categories). 

On the other hand, FIRs registered by the Police are not necessarily filed in English or Hindi, but often in the regional language, as stated in the Code of Criminal Procedure (Section 277). In Prema v State, the FIR was written in Tamil, using English words. This is what led to the misspelt “Seman”. A 2019 Delhi High Court Bench had in fact directed the Delhi Police Commissioner to use the same words used by the Complainant while filing an FIR, although this is still rarely ever (if at all) seen in practice.

Another confusion added to this issue is that regional and sessions courts conduct their proceedings in the regional languages, whereas the High Courts and Supreme Courts only conduct their proceedings in English. When a case travels in appeal to the High Court or Supreme Court, then translations become necessary. There used to be a set of official translators dedicated to serving this task, I am told, but today it is more common for translations to be done through non-official translators, or by lawyers’ or litigants themselves. It is understandable, then, that translations are often riddled with faults, and can lead to drastic consequences as in Prema v State. Faulty translations are a second-level problem though. Because what this masks is the possibly large number of litigants who cannot knock on the doors of constitutional courts, being unable to fund a litigation that requires an added expense of getting the record translated.

Then there is the problem posed by conducting proceedings chiefly in English, and how this renders justice inaccessible to those not conversant with the language. Firstly, the parties themselves, along with witnesses, are often not conversant in English. To ensure their adequate participation in the process, it would require hiring translators and even interpreters. This is a far-away dream given the stricken-state of judicial infrastructure at the district level. Further, legal representation in subordinate courts usually comprises non-English speaking lawyers, which renders them not very helpful for taking litigation to constitutional courts.

Under Article 21 of the Indian Constitution, every litigant has the right to justice. This implies that not only must he have the right to speak in the language he understands before the magistrate, but also the right to understand the whole proceedings and the judgment delivered. It is evident, then, that this right is far from being realised in how the judicial system currently functions.

A Three year old Respondent 

The Trial Court found that the evidence given by the mother of the victim child was not enough to substantiate the case and it was not trustworthy, considering the same to be hearsay. Based on this, the Trial Court found that the prosecution’s case was not proved beyond reasonable doubt and accordingly acquitted the accused. In doing so, the learned Judge implied that the non-examination and absence of testimony from the 2.75 year old victim could prove fatal to her case. 

As per the Indian Evidence Act (Section 118), all persons, including a child, are competent to be considered as a witness in the court of law if they are able to understand the questions put to them, or able to give rational answers to those questions. However, it is important to note that the evidentiary value given to a child witness differs from case to case and circumstances influence the trust and value of such evidence. The trial judge is responsible for conducting the Voir Dire Test and deciding whether such a witness is competent to give evidence, or is a tutored witness. 

If it can be understood legally that circumstances impact the validity and admissibility of such evidence, it should also be legally understood that circumstances impact the ability of a child victim to come forward as a witness. It is a reasonable stance to hold that the inability of a child witness to come forward in a trial cannot be considered fatal to a case, no matter what the circumstances. Furthermore, expecting the child in question, who has recently been sexually abused and is in pain, to speak openly in front of strangers or even understand the complexity of the situation, is beyond reasonableness. The requirement of such a child to be examined as a witness, and the non-believing treatment meted out to the mother of such a child, is a definite obstruction to justice. 

It is also important to note that although POCSO trials are conducted ‘in camera’, the child is nevertheless being placed in an unfamiliar and highly confrontational setting. The POCSO Act makes available various provisions for the recording of evidence of a child witness, that still seem to fall short of the necessity. Section 26 allows the Judicial Magistrate to take the assistance of an interpreter, translator or any other person familiar with the child’s manner of communication while recording a statement. The section does not make any provisions for victims or witnesses below the age of three years, at which age they can only formulate two to three word sentences. 

The consequent section states that presence of a special educator in cases of physical and mental disabilities is permitted. While commendable, the Act should go forward, considering the possible regression and trauma caused by an instance of sexual assault or harassment, and make the presence of such assistance the norm instead of the exception. In this case, the child was produced before a Judicial Magistrate who noted in his report that she stayed silent even when asked simple questions such as her name or age, and was clearly afraid to speak in front of a stranger (Para 38). The absence of an interpreter, or a special educator in the case certainly raises doubts as to the efficiency of the court's proceedings. 

Criticism of an Idealised Legal System

There exists a visibly stark contrast between the judgments of the High Court and Trial Court. This distinction is a sure-fire way to oppose the idealised legal system. The common belief that the facts of a case are objectively heard and the truth always comes out due to the evidentiary rules is proved wrong in most appealed cases where the previous verdict is overturned, as in this case. The facts of a case are never objectively heard. The Judge assigned to a case influences the judgment, be it for good or bad. For instance, the Trial Judge refused to consider the reasons behind the delay in filing the FIR, nor did the Judge accept the reason behind the absence of medical evidence. On the other hand, the High Court fully took into consideration the reasons behind the delayed FIR, attempted to understand the reluctance of the other neighbours to stand as witnesses, considered the absence of medical evidence due to the delay and so on. The positions taken by the two courts indicate that facts cannot be heard objectively. By attempting to ascertain which of the judges were correct in their stance, one’s own subjective biases get included in the process. 

Additionally, the portrayal of the same facts in two such opposing ways as in this case is another indicator of the idea that the truth being discovered through trial is patently flawed. The defence portrays the inimical terms between the appellant’s husband and the accused as a reason to throw suspicion on how she would leave her child in the custody of the accused. The prosecution on the other hand puts forth the community and neighbourly environment, where the accused was sitting in his courtyard and voluntarily offered to look after the child who was crying. The defence uses the flimsy evidence of reddish colour on the victim’s private part due to the “semman-seman” typography, which went unnoticed and uncorrected by the Judicial Officer, while the prosecution brings forth the evidence of the white liquid present on her body as well as her garments, as noticed by the mother of the victim and the doctor treating her for the fever and prolonged trauma. The defence portrays the reluctance of the neighbours to stand as witnesses as fatal to the case, while the prosecution brings forth the element of community and neighbourhood as a hindrance to stand in support of one party and against the other. 

The quality of legal representation for either side in an adversarial setting is one of the motivations behind the entry of biases into the judicial process. As per the POCSO Act, the State appoints one Special Public Prosecutor to every Special Court and to every Fast Track Court. This in itself seems strange, since it gives way for an opportunity to arise wherein the prosecutor and the Judicial Officer contracted for the term can develop either a favourable or an unfavourable working relationship, hence bringing in further biases. The criteria for appointment of a Public Prosecutor for a High Court have been laid down in Section 24 of the Code of Criminal Procedure, 1973, and appears to be both comprehensive as well as strict. However, the method of appointing Special Public Prosecutors in an FTSC is comparatively lax. 

In a report by the Centre for Law and Policy Research, it was found that the prosecutors in cases tried before Karnataka FTSCs are often laidback and lacking, with instances recorded such as the failure to produce medical evidence to the Court on the grounds of it being unnecessary, or not engaging the assistance of interpreters or translators when necessary due to the costs or time involved. Prosecutors and judges are not given any specialised training as to dealing with POSCO related cases.

Furthermore, many judges are not able to factor out their personal beliefs while they are considering court cases, even when they have the best possible intentions. The Trial Court stated that the Prosecution had failed to substantiate the case of the prosecution and prove the charge. However, Section 29 of the POCSO Act clearly states that the Special Court shall presume that such person has committed the offence, as the case may be unless the contrary is proved in cases of aggravated sexual assault. The burden of proof in the case was supposed to be on the accused, but the Trial Court Judge shifted this burden with no given reason on to the prosecution, and the Special Public Prosecutor failed to point the same out.

Another reason is the incidence of witnesses and victims turning hostile. This occurs due to a myriad of reasons, ranging from social positions and community belonging, to stigmas and stereotypes, to threats and bribes. For example, witness number 4 in the case, who was the neighbour of the victim, and was actually told the entire story by the victim child herself, was not produced before the Court, because she declined to appear. Her evidence was not recorded at all. The reason given as to why she refused to testify was her position in the neighbourhood, which made her reluctant to speak in support of one family and against the other.

Witnesses are generally not inclined to get involved with court proceedings. It could be due to their position in the society, or because of their inherent vulnerability, especially in cases of sexual offences such as this one, when the witness is female. There also exists a general fear of the police force, coupled with the fear of threat or intimidation from their own communities.

Conclusion

This case comment aimed to highlight the issues underlying the Trial Court’s overturned judgment while also seeking to understand the wider areas of concern faced in the judicial system. The analysis of how biases enter the adjudication system as the case proceeds makes it an interesting case study.

In addition to the above, there exists another important element to be considered. The long span of time taken to finally settle the case, as is the duration spent on most cases in the Indian Judiciary, is a matter of grave concern. The incident itself occurred in September 2017, and the FIR was filed 5 days later, in the same month. The fast-track court passed its judgment only in September 2018, a whole year later. The case was appealed in 2019 and was heard and finally decided on 2nd July 2021. 

The prolonged trauma of not only undergoing such a horrific experience but also living in an environment of suspicion, betrayal and shame without receiving the much-deserved justice, is a gruesome thought that should be wished on nobody. It is essential to analyse the shortcomings in the judicial system that causes cases like this to go on for such long durations. 

Source :The Article written by Megan Sequeira first published on Blog titled The Proof of Guilt and republished in www.abclive.in the interest of justice.

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