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This article is written by Ojasvi Gupta, a student of Banaras Hindu University, Varanasi. It focuses on the rights of the deaf community in India and at an international level while contemplating the changes awaited in the near future.

Introduction

Sign language is a form of communication consisting of hand signals, gestures, facial expressions, and body language. It is an efficient means of communication for the community of Deaf and Hard-of-Hearing (DHH) community, but people with disabilities including Autism, Apraxia of speech, Cerebral Palsy, and Down Syndrome may communicate in sign language as well.

September 23 has been proclaimed as the International Day of Sign Languages by the United Nations General Assembly, with the aim to raise awareness and importance of sign language, recognizing the human rights of people who are deaf. The World Federation of the Deaf declared the theme of the International Day of Sign Languages, 2021 as “We Sign For Human Rights“. It highlights the opportunity of recognizing their rights and protecting the cultural diversity of all deaf people and other sign language users.

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Sign language interpreters are professionals recognized by respective national institutions, who facilitate communication between people who are deaf or hard of hearing and people who can hear. They have a robust understanding of the conversation and ensure that the message is conveyed as it was originally intended to so that no meaning is lost in the interpretation.

Rights for People With Disability (RPWD) Act, 2016

Enacted in 2016, this legislation promotes and protects the rights and dignity of people with disabilities in various aspects of life be it educational, social, legal, economic, cultural, or political. It applies to government, non-government and private organizations. It mandates the government as well as private organisations to ensure the accessibility of infrastructure and services. The Act, if and when implemented effectively, has the potential to make the world accessible to the majority of disabled people.

Some of the key features of the RPWD Act, 2016 regarding deaf enablement are as follows:

  • Section 16 ensures that the education to persons who are deaf or blind or both is imparted in the most suitable languages and appropriate modes and means of communication. 
  • Section 17 (c) emphasizes the inclusion of teachers with disabilities via proper training.
  • Section 42 of the Act mandates all government agencies to ensure accessibility of Information and Communication including sign language interpretation. 

Implementation status

The Indian Constitution itself does not expressly prohibit discrimination against persons with disability, nor cites it as a ground for affirmative action under Article 15 (2). The RPWD Act 2016 is mostly paperwork now, except for a few encouraging ground realities. Its implementation varies across states on account of their initiative as there are still more than 15 states including prominent ones like Maharashtra which had not drafted the state rules even after 2 years of the enactment of the Act. 

The Ministry of Information and Broadcasting has issued accessibility guidelines for private TV Channels to broadcast news at least once a day with sign language. But these guidelines are neither followed in letter nor spirit, and there are no regulatory bodies that monitor the implementation. 

According to a study undertaken by Disability Rights India Foundation (DRIF) along with the National Committee on the Rights of Persons with Disabilities (NCRPD), the status of implementation of the RPWD Act, 2016, after two years of its enactment is disappointing. Some of the findings of the study are as follows:

  • Although the Act states that the State rules must be notified within 6 months of the enforcement, more than half of the states have not acted upon it. 50% of the States and UTs have not constituted State Advisory Boards (SAB), provided in Section 71 of the Act. 
  • 37.5% of the States have not appointed Commissioners for Persons with Disabilities. Even in the 62.5% of the States where there are Commissioners, the progress has not been substantial. Only 3 States have constituted Advisory Committees, composed of experts, to assist the State Commissioner.
  • A total of 19 States had not constituted the State Fund for implementing the Act in 2018.
  • Only 4 States have appointed a Nodal Officer in the District Education Office to deal with all matters related to admission of children with disabilities.
  • 58.3% of the States have not notified Special Courts in the Districts for the purpose of trying offenses under the Act and 87.5% have not appointed Special Public Prosecutors as mandated by the law.
  • Barring 3, no State has Designated Authorities to decide the nature and manner of support needed for persons with disabilities while exercising their legal capacity.

Sign language interpreters and their need in law 

Statistics from the World Federation of the Deaf hint that there are more than 70 million deaf people worldwide using about 300 different sign languages for communication. There also exists an International Sign (IS) language but it doesn’t enjoy very popular consensus. It is mainly used by deaf people in international conferences and during travelling or socializing.

Unfortunately, Human Rights Watch research around the world finds deaf people often struggling to access basic services. In India, Iran, and Russia, the lack of sign language interpreters and information in an accessible manner through technological developments obstructs access to public services and courts. In an international context, sign language interpreting is a relatively new concept in India. Officially, there are only around 250 certified sign language interpreters in India, translating for a deaf population ranging anywhere between 1.8 million and 7 million. (This estimate range is so wide because the Indian census doesn’t track the number of deaf people, instead it records and documents the total number of people with disabilities.)

The DHH community, irrespective of region and status, faces serious obstacles, if and when they enter the legal system. For a deaf person, injustices can occur at any step of the legal process, beginning with arrest, and may continue during interrogations, courtroom hearings, trials, acquittal, probation, and parole. These injustices result primarily from a lack of understanding of deaf people on the part of professionals working in the legal system. For instance, in a courtroom during a hearing or a trial, a segment of the deaf population that possesses limited communication ability faces unique barriers. Unfortunately, it is this same part of the deaf population that is most at risk for violating the law and for experiencing injustice within the legal system. Courtroom situations involving such disadvantaged individuals may worsen in the goal of providing justice for all when they refer to that segment of the DHH community, who by reasons of literacy are incompetent, or partially competent of understanding the legal process.

The legal system as an arena, although never stressed by its fraternity, is distinctly reliant on the ability to hear, and simply hiring an interpreter does not solve every concerned issue. In cases where one of the parties brings along an interpreter after paying extra, their credibility may be diluted on account of the interpreter’s neutrality and qualifications.

Sign language interpreters in courts around the world

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) implores member States to recognize, facilitate, and promote the use of sign languages with the goal to ensure that people with disabilities can enjoy their rights on an equal basis with other human beings. The Convention provides that sign languages are equal in status to spoken languages and States have an obligation to facilitate the learning of sign language and promote the linguistic identity of the deaf community. 

  • United States of America
    • The deaf community’s legal rights are recognized in the United States of America through the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA), and the Individuals with Disabilities Act (IDEA), 1977. Section 504 of the Rehabilitation Act, though not aimed specifically at the deaf community, was the first of the laws to forbid discrimination against the differently-abled by any federal entity. The main goal was to encourage handicapped persons to contribute to society by entering the workplace. This was a great development in American history, as until then deaf persons were often segregated from the schooling and vocational positions of their choice. 
    • In 1990, the landmark ADA was introduced, which expanded the scope of civil rights for those with disabilities, including the deaf. It provides the requirement that lawyers provide auxiliary aids or related services to DHH clients unless doing so would constitute an ‘undue burden.’ Another requirement is public accommodation which ensures effective communications with individuals with disabilities. Although Title III’s list of public accommodations is expansive in its scope for providing access to lawyers, its implementation has faced numerous difficulties, many of which are caused on account by the legal profession’s failure to realize its responsibilities.
    • On April 20, 2016, U.S. Chief Justice John Roberts learned sign language to welcome legal professionals from the DHH community. Presiding as the Supreme Court bench, he signed ‘your motion is now granted’ emphasizing to all the fact that the Deaf and Hard of Hearing lawyers can now argue cases in the USA.
    • Last year only, the National Association of the Deaf had approached the federal court arguing that the administration needs to take into account the needs of the population belonging to the DHH community during the briefings held for the public concerning the pandemic. The court had ordered the White House to provide for American Sign Language interpreters at any press conference relating to coronavirus. 
  • United Kingdom
    • In the United Kingdom, disability rights advocates began asserting the requirement for similar legislation in the European Union (EU) shortly after the ADA was enacted. In 2000, the Union passed the Directive Establishing a Framework for Equal Treatment in Employment and Occupation. In 2003, the U.K. Government recognized British Sign Language as an official minority language, which increased funding for and awareness of the British DHH community. Additionally, the passing of the Equality Act of 2010, strengthened the protections against discrimination affecting the DHH community in England, Scotland, and Wales.
    • The right to an interpreter is an integral part of the right to a fair trial- an established principle of English common law. The right to an interpreter at Court is enshrined within Article 6 of the European Convention on Human Rights, which states that a person who cannot understand or speak the language used in court has the right to be provided with the assistance of an interpreter free of cost. 
  • Scotland
  • The British Sign Language (Scotland) Act 2015 was recently enacted by the Scottish government. When deaf people are detained/arrested, the use of technology is the most adequate option by the Police of Scotland and Solicitors to ensure that deaf people’s right to liberty and security is upheld, but it is not mandatory per se. The Scottish Council on Deafness (SCoD) is the head for all matters concerning deaf people and their issues in Scotland, representing 
    • Deaf /Sign Language users
    • Deafblind
    • Deafened
    • Hard of Hearing people

The Scottish Legal Aid Board (SLAB) is currently carrying out research exploring access to civil legal services for the deaf community. The findings from this research will be used to help improve access to civil legal services for people with hearing loss.

  • New Zealand
    • The global movement towards recognition for deaf rights in New Zealand was enforced through the New Zealand Sign Language Act in 2006, which recognized New Zealand Sign Language(NZSL) as an official language. It mandates the integration of NZSL in legal proceedings, effectively recognizing the right to use sign language by a member of the deaf community in the courtroom.

It should be noted that this brief insight into existing legal rights is non-exhaustive, and many countries continue to work towards promoting and protecting the rights of deaf citizens. Even though many of these laws providing accommodations or recognizing sign languages should have been passed years ago, the noticeable trend towards more expansive rights and State-mandated responsibilities is an optimistic update and with practical results in reality ensures a dignified life to such a differently-abled person.

Do courts in India provide for sign language interpreters 

As per the Indian census, (2011) the population of persons with hearing impairment is 1.3 million. However, the National Association of the Deaf estimates it to be around 1% of the Indian population, i.e., 18 million people. The Rights of Persons with Disabilities Act 2016 (RPWD) gives protection to deaf people and persons with other disabilities. Accompanying the statutory provisions are various judicial pronouncements that ensure that the rights of a deaf person are not violated during court proceedings.

In the National Association Of the Deaf Petitioner vs Union of India (20011), the Delhi High Court, in an order directed the Secretary, Delhi High Court Legal Services Committee to explore the possibility of identifying interpreters when they were faced with a hearing impaired petitioner, to assist the counsels as well as the court for dealing with the communication in cases of disabled persons. 

In Sampath v Inspector (2018), Madras High Court held that it is an established fact that a deaf and dumb person is a competent witness. The only qualification required to give evidence as per the Indian Evidence Act, 1872 is comprehension which means the witness must be able to understand the questions asked, and communication which means the witness must be capable of giving comprehensive answers to the questions or information asked.

Section 119 of the Evidence Act, 1872 deals with witnesses who are unable to communicate verbally. Usually, a witness gives testimony in a court of law by word of mouth but under this Section, a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, be it through writing or through sign language, on the condition that such writing must be written and the signs must be made in open court. 

The Supreme Court in the judgment in State of Rajasthan vs. Darsjam Singh Alias Darshan Lal (2012), has dealt with the evidence of deaf and dumb witnesses and held that the intent of enacting the provision of Section 119 of the Evidence Act was to refute the contemplation prevalent from earlier times that deaf and dumb persons were idiots in matters of law. With the revelations of modern science, this view has changed subsequently. Now, when a deaf and dumb person is examined in the court, the court has to exercise due caution in communicating and interpreting and to ascertain before he is examined that he possesses the requisite amount of intelligence to understand the nature of matter at hand. This condition being satisfied, the witness may administer the oath with the assistance of a sign language interpreter. In case a person can read and write, it is most desirable to adopt written means.

This issue came up recently on May 15th, 2021 during a webcast of an online demonstration of the Supreme Court’s e–filing module. During this session, the former CJI and chairperson of the Supreme Court’s e-committee, SA Bobde gave a speech and the honorable Justice DY Chandrachud spoke about the background and the purpose of the live demo. While the entire show was being telecasted on Youtube, the program was beyond the reach of the deaf community as it was not accompanied by a sign language interpreter nor was the show accessible by way of closed captioning. An advocate of the Supreme Court, Mr. Shashank stated that since he joined the Supreme Court as a lawyer in the year 2011, several judges have retired, events have been organized, Supreme Court judges have given several lectures and several oath ceremonies of newly appointed judges of the Supreme Court have taken place but none of these events had sign language interpretation. 

According to him, the deaf community in India files cases and petitions not only for themselves but also for others. Recently the Assam Association of the Deaf petitioned the Supreme Court against the CAA. This shows that the small percentage of the deaf population in India is not only sensitive towards its rights but also towards the rights of Indian citizens. A PIL was filed in the Delhi High Court by a disability rights activist in September 2018 which requested recognition of Indian Sign Language. Making Indian Sign Language official will ensure that Courts across the country are inclusive and provide sign language interpreters. Because of this, there will be better employment opportunities for persons with disabilities. The DHH community can aspire to become lawyers and judges because of such accessibility. These are some of the many ways through which courts can become inclusive and follow the RPWD Act, 2016.

Conclusion

There are a number of laws, at the national as well as international level, that protect the rights of persons with hearing loss who encounter the legal system, especially the criminal judicial system. However, in practice, as often shown by organisations working for these people, these laws are either misunderstood or ignored by professionals in the system, largely because of a lack of awareness of the communication issues that persons with hearing loss face. This is especially true of the segment of the deaf population most likely to become involved with the criminal justice system, those who are uneducated, poor, belong to a social minority, and are unable to advocate for themselves. Adjustments need to be made in the law to accommodate the communication needs of deaf individuals. 

References

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