Delhi High Court: In a case wherein, the petitioner had filed a writ petition under Article 226 of the Constitution read with Section 482 of the Criminal Procedure Code, 1973 to direct the State to constitute a Special Court as per Section 84 of the Right of Persons with Disabilities Act, 2016 (‘RPWD Act'), Swarana Kanta Sharma, J.*, opined that active judicial conduct to ensure access of persons with disabilities in the judicial process would ensure constitutional vision of justice was achieved and stated that the directions issued by the Court should be complied with by the authorities within a period of three months.
In the instant case, the petitioner since childhood, was a deaf divayang and also suffered from the post-traumatic stress disorder induced eye cataract, which resulted in weak blurred vision since 2012. The petitioner also suffered from the post traumatic fractured maligned joint stiffness since December 2014. In 1996, the petitioner got married and the petitioner's wife was also 70% disabled and suffered from polio in her left lower limb.
In 2012, matrimonial differences arose between the petitioner and his wife and subsequently, several complaints were filed by the wife on the ground of verbal and physical cruelty. The petitioner stated that the charge-sheet for the offence under Sections 498A and 323 of the Penal Code, 1860 was filed against him and the case was pending trial.
The petitioner stated that due to his disabilities, he was not able to understand and participate in the trial proceedings. The petitioner further stated that the sound based, trial proceedings against the deaf petitioner were against the principles of natural justice, and violated provisions of the RPWD Act, and also violated Article 14 and 21 of the Constitution.
Analysis, Law, and Decision
The Court relied on Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374, wherein it was observed by the Supreme Court that “failure to provide a fair hearing either to the accused or the prosecution violates the minimum standards of due process of law ”. The Court opined that the concept of fair trial for an accused in India was a fundamental and constitutionally protected right that formed the bedrock of the country’s criminal justice system.
The Court stated that to give effect to Section 12 of the RPWD Act, the Supreme Court's E-Committee, had formulated a Standard Operating Procedure on Preparation of Accessible Court Documents, which guided, as to how the documents, in the form of PDFs, could be created which made digital infrastructure of our judicial system more accessible to the persons with disabilities.
Thus, inspired by the same, the present Court had shifted every Delhi District Courts's website on “Secure, Scalable and Sugamya Website as a Service” (‘S3WaaS') platform, which kept all the documents on the website in Optical Character Recognition (‘OCR') format to ensure accessibility. Moreover, a Web Accessibility Compliant Cause List had been launched, which helped the visually impaired individuals to access the cause list by using various accessibility text-to-speech software. Thus, this Court opined that these initiatives undertaken by the Information Technology Committee/Accessibility Committee of this Court also reflected the commitment of this Court to fulfill the mandate of Section 12(4)(c) of the RPWD Act.
The Court further noted that the appropriate Governments had not taken any steps to enforce Section 12(4)(c) of the RPWD Act, which provided to ensure availability of suitable facilities for recording of evidence or hearing arguments during trial in any case before the Court.
The Court highlighted another glaring inadequacy and noted that the Special Court formulated under Section 84 of the RPWD Act, pertained only to the courts conducting trial of offences contained in Chapter XVI of the RPWD Act, and could not be used to try offences committed under any other penal laws.
Thereafter, the Court stated that the alternative methods need to be devised so that following facilities were availed by the persons with disabilities:
use of braille to enable person with visual disability to read;
sign language to facilitate communication with a person having hearing impairment;
technology through which visually impaired person could use speech synthesizers connected to a computer which can read aloud the text of computer screen to the visually impaired through electronically generated voice; and
low vision computer to enlarge the printed text which could be read by the users with limited eyesight.
The Court further suggested infrastructural improvements, which included:
Necessary facilities in the courts including wheelchairs, elevators, and other modes to provide mobility to persons with disabilities;
clear indication for designated court rooms;
there should be sign language interpreters and the Courts should also have new technology, machines which supported visual and hearing-impaired persons;
Judicial education and training regarding needs of persons with disabilities as accused, witnesses, parties, counsels, etc. will ensure realistic barrier removal by those involving dispensation of justice;
proactive approach of the Judges, and
training and sensitization for hidden disabilities or invisible illnesses, such as autism or psychological disorders including post-traumatic stress disorder.
The Court relied on State of Maharashtra v. Bandu, (2018) 11 SCC 163 and Smruti Tukaram Badade v. State of Maharashtra, 2022 SCC OnLine SC 78 and opined that on the lines of vulnerable witness rooms, a room could be dedicated to the needs of accused persons with disabilities which would have all the needful assistive technology or other facilities in accordance with their specific needs.
The Court further stated that the RPWD Act at present only dealt with victims and suggested that the RPWD Act should have a specific provision to deal with needs of witnesses, accused, advocates, counsels, public persons who took part in judicial trial and proceedings to ensure their meaningful participation in the judicial process.
Government of Delhi should provide infrastructure and financial assistance for procuring essential electronic gadgets for the purpose of conducting trials. The installation of such gadgets and infrastructure would ensure that such persons with disabilities would be able to better understand and meaningfully participate in the judicial proceedings, whether criminal or civil;
Delhi State Legal Services Authority (‘DSLSA') should prepare a comprehensive scheme in which accused persons with disabilities would be able to access justice by addressing the issues raised before this Court and guidelines laid down with regard to the accused persons with disabilities who were not necessarily victims under the Act, with dignity and equality;
Secretary, DSLSA would formulate a scheme for the benefit of accused persons with disabilities for their communication and better understanding of the cases and proceedings by acquiring latest assistive technology;
Registrar General of this Court would explore the possibility of availability of a room on the lines of vulnerable witness room, for accused persons with disabilities who were unable to access the Courts and the justice system with equality and dignity, due to impediment of their disability and shall also consider making interim arrangements in this regard;
increase awareness among the public and inform them about availability of resources to ensure accessibility to justice to accused persons with disabilities;
The Delhi Judicial Academy would hold a programme for the Trial Court Judges, lawyers, court staff and police for sensitization and information about the availability of services for the persons with disabilities in the Court premises.
Thus, the Court opined that active judicial conduct to ensure access of persons with disabilities in the judicial process would ensure constitutional vision of justice was achieved and stated that the directions issued by the Court should be complied with by the authorities within a period of three months.
Accordingly, the Court disposed of the present petition.
[Rakesh Kumar Kalra Deaf Divayang v. State (NCT of Delhi), 2023 SCC OnLine Del 5261, decided on 24-08-2023]
*Judgment authored by- Justice Swarana Kanta Sharma
Advocates who appeared in this case :
For the Petitioner: Dharmendra Kumar, Anjana, Manoj Kumar, Rajmani Mishra and Nitin Sharma Advocates
For the Respondent: Rupali Bandhopadhya, ASC for State with SI Virender, PS Begumpur; Anurag Ahluwalia, CGSC with Abhiyan Siddhant, GP; N. Hariharan, Senior Advocate (Amicus Curiae) with Aman Shreyas, Siddarth S. Yadav, Punya Rekha Angara, Prateek Bhalla, Sharian Mukherji and Mueed Shah, Advocates; Ajay Verma, Advocate