Linguistic Barriers to Justice in Indian Criminal Procedure
This is a guest post by Abhinav Sekhri (Advocate, Delhi) and Jinal Dadiya (BCL Candidate, Oxford University)
Despite being meticulously detailed in most part, the Indian Code of Criminal Procedure, 1973 (hereinafter referred to as the “CrPC”) is noticeably half-hearted in its treatment of issues of language-based barriers to access. For a country of as much linguistic diversity as India, potential linguistic hurdles to comprehending criminal proceedings are not only intuitively discernable, but have also demonstrated their growing presence over the years, with inter-state migrant workers and trafficked persons regularly coming into needless conflict with the law. The problem which this piece aims to address is two-fold: First, that the CrPC grants only a limited right of translation/interpretation to accused persons, accruing only at the stage of trial and not earlier, substantively denying them a significant aspect of the Right to Fair Trial, and secondly, that in instances where the code does indeed make provision for translation/interpretation of evidence, the absence of a standardised procedure has resulted in extreme irregularities/injustices and even “abysmal” results. The latter refers not only to issues of access to translated/interpreted evidence by the accused, but also examines the quality of the translated/interpreted evidence which Courts use in the course of trial. In this attempt, the researcher shall highlight the extent to which the CrPC remains partially blind to issues of access and to the phenomenon of “lost in translation”. In response to the same, this piece will briefly explore the possibility of introducing a mechanism to ameliorate the same. A more fundamental problem of linguistic access relates to the very conduct of all proceedings in a language foreign to accused, and this remains a theme underlying this piece.
The extent to which a Formal Right to Translation/Interpretation accrues to an Accused under the CrPC
The inclusion of Sections 277 to 282 and Section 333(1)(c) of the CrPC is demonstrative of the legislative awareness to potential issues of linguistic access which may arise while allowing individual State governments to choose their own ‘Language of Court’. According to these provisions, any evidence which is in a language not understood to the accused, and is deemed necessary by the Court for the purpose of ‘formal proof’ “shall be interpreted to him (or his pleader) in open court in a language understood by him”. The Record of the Examination of Accused and the operative parts of judgement of the court are to be interpreted similarly. Further, an interpreter employed by the court for this purpose is bound to state only the “true interpretation of such evidence or statement”. Formally, at least, an accused who does not understand the Language of a Court where s/he is being tried has the right to access evidence in a language understood by her/him. This right, however, accrues only at the stage of adducing evidence. Other proceedings, such as those relating to the Framing of Charges (Section 240), Bails and Bonds (Chapter XXXIII) and Police Investigation (Chapter XXII) have been glaringly excluded from the ambit of this right. Four judgements of different High Courts of the country have held that in the absence of an express provision for the same, an accused enjoys no implied or extended right to translated copies under Section 207 of the CrPC; reasoning which may be analogously applied to other provisions as well. Thus, the right to translations/interpretations under the CrPC may best be described at limited, proscribed by the stage of proceedings, and the nature of the material to be translated.
Translation/Interpretation as a ‘Fair Trial Right’
The Right to a Fair Trial, though not specifically enumerated under the Constitution of India, has judicially been interpreted to be an important part of it, as part of the Right to Life and Personal Liberty under Article 21. While the exact shape and form of the Right to a Fair Trial remains fluid, with the Hon’ble Supreme Court expressing its inability to capture it within a “straightjacket formula,” it is accepted that criminal proceedings adhere to Principles of Natural Justice and the ideas of Fairness. The urgency of a detenu’s need to defend himself/herself has led to the recognition of immediate access to translations of his/her grounds for detention as an important right accruing to him/her. (While the Hon’ble High Court at Madras sought to distinguish detention from the pre-trial stage, due of the absence of urgency, the researcher asserts that the rationale of giving a fair hearing applies to other stages of criminal procedure as well). Significantly, access to translated documents was observed to be an important component of the “bundle of rights” guaranteed as Fair Trial Rights under Article 21 of the Constitution of India by the Hon’ble Delhi High Court in Tuncay Alankus v. Central Bureau of Investigation, where it observed that “the procedural fair trial standard incorporated under Article 6(2) of the European Convention (of Human Rights) is more or less the same as is guaranteed under Sections 278, 279 and 282 CrPC”.
Under the abovementioned Article 6(2) of the European Convention of Human Rights (hereinafter referred to as the “ECHR”), oral and documentary material must be made available to a person charged with an offence in a language understood by him/her. In Kamasinski v. Austria, this right was interpreted to exist at the pre-trial stage as well. The researcher believes that the Right to Translation/Interpretation under Article 21 of the Constitution of India, must, while resonating the language of the ECHR, extend to the pre-trial Stage as well. Infact, in Siddhartha Vashisht v. State, where the Apex Court had observed that “[T]he right of an accused with regard to disclosure of documents is a limited rights but is codified and is the very foundation of a fair investigation and trial.” The spirit of the Constitution, the international understanding of Fair Trial Rights, and the interpretation of the CrPC would warrant that accused persons have a right to translation/interpretation in the pre-trial stage as well.
The phenomenon of “Lost in Translation”
In its uncommitted and feeble treatment of issues of translation/interpretation, the CrPC is far from providing for the adequacy/reliability of translations. While, under Section 282, the CrPC interpreters are bound in law to state ‘true’ interpretations of such evidence and statements as they may be called upon to translate, the statute fails to provide for the procedure for appointing Interpreters and Court Translators. It also remains silent on how the question of whether a document is indeed a ‘true’ interpretation must be answered. At the same time, it remains harshly ignorant to the difficulties of it being challenged by persons who are already disadvantaged by their inability to comprehend the official language of the court and have access to only flawed interpretations/translations of limited parts of important documents. Obviously, in order to be real and effective, a formal right to translation/interpretation must mean a right to true, accurate and comprehensive translation.
These legislative blanks have given rise to divergent judicial practices and clarifications issued by courts in spurts, in response to specific fact situations which highlight the phenomenon of “lost in translation”, often leading to the “inherent indeterminacy of translated language” which affects the criminal justice system. In Jai Singh v. State of Karnataka, the Hon’ble Supreme Court observed that the translation of the judgement of the High Court had been “abysmal”; an incident representative of the problem at hand. Similarly, in Rubabuddin Sheikh v. Central Bureau of Investigation, a discrepancy in the translation of the charge-sheet seriously impacted the appreciation of evidence by the Hon’ble Supreme Court. Here, the phrases “sent somewhere” and “somehow made to disappear” were two alternative translations of the same piece of vernacular evidence, leading to the existence of differing versions of the roles played by the accused.
The kind of recourse which may be taken in cases of defects is largely limited, uncodified, and depends on the discretion of the Court. In the aforementioned case of Tuncay Alankus v. Central Bureau of Investigation, it was held that a defect in translation was only just an extreme irregularity, not enough to vitiate proceedings, unless factual injustice occasioned to the accused was proved. This naturally begs the question of whether a failure of justice, occasioned by such defect can indeed be demonstrated by an accused who is unable to comprehend the language of the court, and has access to only flawed documents in a language s/he understands.
In this case, the translator had been appointed by way of an advertisement in the newspaper, and government accredited authorities in Turkey had certified that there were indeed discrepancies in the translation. The Hon’ble High Court had further clarified that the finding of the Trial Court regarding the competence of the interpreter cannot be questioned; a position which the researcher believes to be quite apparently flawed, in light of the Trial Court’s own limitations in understanding the language in which the evidence was adduced. A similarly flippant approach may be observed in the decisions of the Hon’ble Himachal Pradesh High Court in Minunno Vancenzo v. State and that of the Apex Court in Shivnarain Kabra v. State of Madras.
This section thus, not only highlights how Fair Trial Rights of accused persons are violated, but also demonstrates that the mutilation of evidence, in the absence of corrective safeguards within the CrPC (or read into it by judicial interpretation) may result in flawed adjudication.
Procedural Safeguards and Mechanisms for Standardisation
The gravity of the problem at hand is perhaps best observed in the almost anecdotal judgement of the Apex Court in Vaithi v. State of Tamil Nadu, where “the correctness of the English translation was verified by this (the Supreme) Court with the help of a Tamil knowing member of the Bar and found to be accurate”.
Contrastingly in 1983, Chandrachud J. had, in an important decision of the Hon’ble Supreme Court on an issue relating to the translation of question papers, observed that “if English questions have to be translated into Hindi, it is not enough to appoint an expert in the Hindi language as a translator. The translator must know the meaning of the scientific terminology and the art of translation”. Perhaps, integrity in the legal understanding of translation and access to language warrants a similar approach when it comes to criminal procedure, where the inquiry is no less technical.
Joshua Karton, in an approach similar to the one in Tuncay Alukas suggests a more inquisitorial role for presiding judges in cases where parties do not understand the language of the Court. The researcher believes that this role must be understood as more wide-ranging than the one ascribed by the Hon’ble Delhi High Court, to the Trial Judge, who being non-conversant in the impugned language himself/herself, is hardly in a position to make any accurate determination of the truth of the translation. Solan and Tiersma, in Speaking of Crime, suggest the appointment of psychologists, linguists and scholars as expert witnesses to deal with issues of translation. While this approach may have some merit, it has several evidentiary implications, which require pre-emption. Shah, Rahman and Khashu suggest comprehensive guidelines for Law Enforcement Agencies and Courts, claiming that “it is possible to ensure language access”. Inspiration may be derived from these, as well as the African model, while drafting guidelines for the Indian Criminal Procedure.
The researcher believes that issues highlighted in this section and the previous one, must be addressed by legislative safeguards, addressing the questions of: ‘Who may act as an interpreter?’, ‘Can the court authorise official translating/interpreting authorities?’; ‘Would the establishment of a dedicated national authority to oversee the same help solve the problem?’; ‘Would there be a presumption in favour of the truth and accuracy of translations/interpretations stated thus?’; ‘Is an interpreter an Expert Witness for the purposes of Trial?’, ‘How can defects in translation be challenged by accused persons who do not understand the language of the Court?’. Naturally, these answers must be such that they protect, substantively, Fair Trial Rights and ensure the collapse of linguistic hurdles faced by both the accused and the Court.
 See for instance S. Philip, Migrant Workers Caned in Kerala, Indian Express, (July 18th, 2012), available at http://archive.indianexpress.com/news/migrant-workers-caned-in-kerala/975856/, (last visited on Oct. 4th, 2014), T. Lahiti, Delhi Journal: The Migrant Problem, The Wall Street Journal, (March 30th, 2012), available at http://blogs.wsj.com/indiarealtime/2012/03/30/delhi-journal-the-migrant-problem/, last visited on Oct. 4th, 2014), J. Chowdhury, Bangladesh Migrants: The Citizens of No Man’s Land, Russia Today, (May 23rd, 2014), available at http://rt.com/op-edge/161056-bangladesh-migrants-citizens-india/, last visited on Oct. 4th, 2014).
 Sections 277 to 282 and s. 333, CrPC.
 Jai Singh v. State of Karnataka, (2007) 10 SCC 788, [Supreme Court of India].
 D. Carr, Lost in Translation: Due Process for Non English Speaking Defendants from an Appellant Perspective, Interpreter Manual, Kentucky Department of Public Advocacy available at http://apps.dpa.ky.gov/library/manuals/inter/lost.html, (last visited on Oct. 4th, 2014), and J. Karton, Lost in Translation: International Criminal Tribunals and the Legal Implications of Interpreted Testimony, 41(1), Vanderbilt Journal of Transnational Law, (January, 2008).
 Section 272, CrPC.
 Section 279, CrPC.
 Sections 281 and 333(1)(c), CrPC.
 Section 282, CrPC.
 See Harminder Singh Pritam Singh Virdi v. State of Maharashtra, 1990 Mah LJ 721, [High Court at Bombay], Arputhuraj v. State, 1998 (1) MWN (Crl.) 266 [High Court at Madras], Rakesh Mittal v. State of Tamil Nadu, 1999 (2) MWN (Cr.) 172, [High Court at Madras], Rajiv Ravi Das v. State of WB (CRR No. 1145/08, decided on 26.09.08), [High Court at Calcutta], and Sajal Sureshkumar Jain v. State of Gujarat, (2005) 2 GLH 530, [High Court of Gujarat].
 To this extent, this right is unlike the ones under Articles 20 and 22 of the Constitution, which are specifically enumerated as Fair Trial Rights and extend to the pre-trial stage as well.
See G. Someshwar Rao v. Samineni Nageshwar Rao, (2009) 14 SCC 677, at p. 680, [Supreme Court of India].
 See Siddhartha Vashisht v. State, (2010) 6 SCC 1 [Supreme Court of India].
 See Prakash Chandra Mehta v. Commissioner and Secretary, Govt. of Karnataka, 1986 AIR 687, [Supreme Court of India] and the recent R. Pandimmal v. State of Tamil Nadu, MANU/TN/1265/2014,[High Court at Madras].
 Tuncay Alankus v. Central Bureau of Investigation, 148 (2008) DLT 289, [Delhi High Court].
 Kamasinski v. Austria, Application No. 9783/82, A/168, IHRL 93 (19 December, 1989), [European Court of Human Rights (Chamber)]
 Siddhartha Vashisht v. State, (2010) 6 SCC 1 [Supreme Court of India].
 See Olga Tellis v. Bombay Municipal Corporation , 1986 AIR 180, [Supreme Court of India].
 See J. Karton, Lost in Translation: International Criminal Tribunals and the Legal Implications of Interpreted Testimony, 41(1), Vanderbilt Journal of Transnational Law, (January, 2008). In this article, Karton highlights factors which are internal to the language as well as those external to it lead to inaccuracies in the translations of essential documents used in the Criminal Process.
 Supra note 4.
 Jai Singh v. State of Karnataka, (2007) 10 SCC 788, [Supreme Court of India].
 Rubabbuddin Sheikh v. State of Gujarat, (2010) 2 SCC 200, [Supreme Court of India]. Similarly see Ramchandra Shenoy v. Hilda Brite, 1964 AIR 1323, [Supreme Court of India].
 Minunno Vancenzo v. State of Himachal Pradesh, 2006 CriLJ 2339, [Himachal Pradesh High Court].
 Shivnarain Kabra v. State of Madras, 1967 AIR 986, [Supreme Court of India].
 Vaithi v. State of Tamil Nadu, 2011 (12) SCALE 606, [Supreme Court of India].
 Kanpur University v. Samir Gupta, 1983 AIR 1230, [Supreme Court of India].
 Supra note 19.
 L. M. Solan and P. M. Tiersma, Speaking of Crime, (University of Chicago Press, 2005).
 S. Shah, I. Rahman, and A. Khashu, Overcoming Language Barriers, Vera Institute of Justice. These guidelines include the stages of ‘Know who you are Serving’, ‘Establish Language Access Policies and Protocol’, ‘Educate Staff About Language Access’, ‘Identify and Train Bilingual Staff’, ‘Notify the Public’ and ‘Pool Language Access Resources’.
 African Commission on Human & Peoples’ Rights, Principles And Guidelines On The Right To A Fair Trial And Legal Assistance In Africa, 2003.