This June, the UNHRC has convened for its 32^nd Session in Geneva. One of the draft resolutions shall, if voted for by the members, be the third resolution of the Council on Sexual Orientation and Gender Identity (SOGI).

The draft resolution has been proposed by seven South American nations. It has four preambulatory clauses and eight operative clauses. Most of the clauses are based on language agreed on in the past. However, interestingly, this draft seeks to “appoint, for a period of three years, an Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity[.]”

This post seeks to look into India’s voting history on the SOGI issue, the possible reasons for such a vote in the past, and the possible factors that might drive this coming vote. Of course, it might be conjecture. But one can only deduce the reasons from looking at factors and events surrounding the various votes.

Voting History and Factors Driving the Vote

Broadly speaking, India has voted in two forums on the SOGI issue; The Human Rights Council and the United Nations General Assembly (Third Committee).

The HRC:

In the Human Right’s Council, the SOGI issue has emerged only been tabled as a resolution three times (2016 being one the third time).

The first such resolution was tabled in 2011. It requested the High Commissioner for Human Rights to prepare a study on discrimination and violence perpetrated on the basis of sexual orientation and gender identity. India, at this point of time, was not a Member of the HRC and couldn’t vote on the resolution.

The next time this issue was raised was in 2014. This time, India was a Member of the HRC. In the September session of the HRC, a new resolution was tabled for a vote. This SOGI resolution took note of the outcome of the study and panel discussion necessitated by the previous resolution. It requested the High Commissioner to update the study. The resolution was put up to a vote with seven hostile amendments. These amendments were defeated and the resolution was passed. India abstained in this vote.

There were domestic factors which probably drove this vote. In 2013, the Supreme Court of India upheld the very provision the Delhi High Court had struck down in 2009 regarding the criminalisation of consensual sex between sex adults. There was, however, one positive judgment which came out of the very same Apex Court in 2014. The Court recognised the right of transgender persons to determine their own gender, and called upon the Indian Government to ensure equal rights for transgender persons. The Indian judiciary, thus, seemed to be divided on issues related to LGBTI rights. Apart from this, elections to the Lok Sabha were held in May 2014. India had voted in the Bhartiya Janta Party (BJP) headed by Narendra Modi. Before the elections, the then President of the BJP – Rajnath Singh said that, Sec. 377 had to remain because “ homosexuality is an unnatural act and cannot be supported,” However, other BJP leaders like Arun Jaitley, recently, even called upon the Supreme Court for a reconsideration of their judgement on Sec. 377. Thus, even the political party in power, seems splintered on the issue.

It, however, is only possible to speculate that these factors impacted the general policy decision regarding the SOGI issue in the HRC, leading to an abstention in 2014.

The UNGA:

The United Nations General Assembly has never addressed the issue of LGBTI rights as directly as the UNHRC. It has, however, over a series of resolutions urged States to “ensure the effective protection of the right to life of all persons under their jurisdiction, to investigate promptly and thoroughly all killings, including those targeted at specific groups of persons…because of their sexual orientation or gender identity…” India has always voted for these resolutions. However, we must keep in mind that the wording of these UNGA texts on ‘Extrajudicial, summary or arbitrary executions’ only urges States to investigate crimes, essentially, motivated by hate. The Indian Government cannot refuse to investigate the killing of an individual despite the motivation of such a crime being hatred for the LGBTI community. Therefore, it’s not nearly as controversial as the HRC resolutions which address concepts of both violence and discrimination perpetrated against LGBTI persons.

The Probable Vote

There are 3 types of factors that may impact the way India will vote – the language in the draft, international factors, and domestic factors.

Language in the Draft:

In the upcoming tabling of the HRC Draft Resolution, two informal negotiations were held by the Sponsors of the Draft Resolution. On the first informal negotiation, the Russian Federation spoke out against the text in its entirety by stating that this was a sensitive issue and that the Sponsors should consider withdrawing it. China argued that it was a complicated issue and they had reservations to the “Special Procedures” that the text seeks to bring about. India, while present, indicated that they shared China’s reservations.[i]  Both countries had concerns around the appointment of an Independent Expert (IE) on sexual orientation and gender identity. It was interesting to note that in the second informal negotiation, the Indian delegation was not present.

It is also possible that concerns related to the language of the text may influence India’s vote.

The strongest concern which India could have is in Operative Paragraph 3 and the use of these Special Procedures of the Council for the appointment of an “Independent Expert.” The sub-clauses within these paragraphs give a very broad mandate to the IE. This mandate could be seen as intervening in the domestic sphere where the State is sovereign.

However this may not be quite true as the Sponsors included Operative paragraph 5 which reads:

“5. Calls upon all States to cooperate with the Independent Expert in the discharge of the mandate, including by providing all information requested, to give serious consideration to responding favourably to the requests of the Independent Expert to visit their countries and to consider implementing the recommendations made in the mandate holder’s reports;”

This dilutes the strong mandate, permitting many countries to disallow the IE from pursuing her/his mandate in their countries. So, even if States do vote for this resolution, they have no actual obligation to permit the functioning of the IE within their boundaries.

Therefore, even though there is a strong mandate, the text seems to create a backdoor for those who may not want to comply. This may tempt India to vote for the resolution if it doesn’t seek to do anything about recognising LGBTI rights. However, before we can jump to such a conclusion, it is important to consider other factors as well.

There are two sets of factors which may influence India’s vote on the 30^th of June or 1^st of July on this Draft Resolution – International factors and domestic factors.

International Factors:

On the first level, we must consider three international factors – first, PM Modi’s interest in his Government’s foreign policy, and second, the fact that India is due to present their UPR (Universal Periodic Review) in 2017; and third, States opposed to the SOGI draft resolution.

First, India’s Prime Minister has shown enthusiasm for diplomacy. His own Government calls this brand of diplomacy, “fast track diplomacy”. With all global leaders expressing their grief after the Orlando massacre, PM Modi found it necessary to do the same on Twitter. He expressed his “shock” and offered his “thoughts and prayers” to the “bereaved families and the injured.” Of course, an anti-LGBTI stance would hamper the Prime Minister’s diplomacy. By conveying his condolences for those at a loss in Orlando, he has publically accepted the existence of violence and discrimination faced by individuals based on their sexual orientation, something he could have ignored considering his party’s stance on the issue.

Second, India is due to present their UPR in the June session of 2017 as part of its third UPR submission. The Universal Periodic Review (UPR) is a unique process which involves a periodic review of the human rights records of all 193 UN Member States. It provides an opportunity for all States to declare what actions they have taken to improve the human rights situations in their countries and to overcome challenges to the enjoyment of human rights.[1] The last time they were questioned on their policy on the SOGI issue and this time is likely to be no different. An anti-LGBTI stance would present the Indian government in a very unfavourable light during the UPR and dent the global image of this government. Mr. Modi’s desire to exercise more soft power through diplomacy cannot be achieved with a policy that is opposed to an issue which has gained a lot of political traction, especially in Europe and the Americas. If he needs to increase his diplomatic influence, India must not only vote yes for the resolution but, looking ahead, must also have answers to the inevitable question on LGBTI rights on the upcoming UPR  in 2017.

Lastly, a parallel draft resolution has been tabled by Egypt and Russia, as well as a few other States. This draft is titled ‘The Protection of Family.’ Which seems to directly oppose the idea of a family which is not heterosexual. India may alienate States opposed to the SOGI issue, if it votes for the SOGI draft.

Domestic Factors:

We must consider two domestic factors – first, a shift in the views of the Indian judiciary, and second, a shift in the views of the RSS. First, recently, the Supreme Court permitted a relook at the Koushal judgment which upheld Sec. 377 through a (rare mechanism called) “curative bench.” Second, the Joint General Secretary of the RSS (which wields enormous influence with the government) suggested that homosexuality should not be criminalised though it’s a “psychological” problem and socially “immoral”. Domestically, there has been a gradual shift to the acceptance of the LGBTI rights – at least, to the extent of decriminalising consensual sex between adults of the same sex.

So, How Will India Vote?

To answer that, we must take all of the factors in consideration – past trends in votes – abstention in controversial resolutions; the language in the text – a broad mandate of the IE, however, not creating a legal obligation on States; a right wing political party splintered in its views on the issue;divided opinion of the judiciary; a brand of foreign policy and diplomacy spearheaded by the PM himself, and the upcoming UPR submission.

The language in the text, the PMs foreign policy motives and the upcoming UPR submission suggest that India might, for a change, vote for the resolution. However, when we see the views of some in the BJP, and the RSS regarding LGBTI issues, a vote for the resolution may cause the PM to gain popularity in the West, but lose the same within his party, the RSS and many conservative voters. Internationally speaking, a vote for the SOGI draft may alienate those who are known to vote against the SOGI issue and are sponsoring the draft on ‘Protecting the Family’. An abstention would be the most uncontroversial direction that India could take, while balancing all the aforementioned factors.

Therefore, keeping all the aforementioned factors in mind, the vote is eagerly anticipated. Come the 30 of June or the1^st of July, we will know which way the ballot swings.

Too many commentators write about India as if it is an unfathomable land peopled with a peculiarly philosophical alien species. To be sure, this exoticisation and belittling does not happen only to India; it is a common trope applied to anything that isn’t Western, and often anything that isn’t American. I am not a culture warrior who is writing this before my daily shakha meeting, but even as (or particularly as) a bleeding-heart liberal, I find articles such as A Gary Shilling’s “Let Us Count The Ways India Surpasses China” harrowing. India has innumerable problems, but Shilling chooses to write:

“Change comes slowly to India, whose culture is heavily influenced by a Hindu philosophy that doesn’t emphasize urgency. Hinduism teaches that after death comes reincarnation in another form of life, so Hindu followers don’t need to get everything accomplished in this life since they can get more done in later lives.”

And does not stop:

“Say what you want about colonialism, but British control of India for centuries left a vigorous democracy and a parliamentary form of government, which is useful for running a large, diverse country… India also inherited a free press and a legal system from the UK.”

In this alternate universe where the Vernacular Press Act did not exist (even literature that does credit the British with developing a free press in India does so with many caveats and not with sentences that start with “Say what you will about colonialism” as if colonialism were a football team), such articles about America do not get written. And so I decided to fill the gap and write an article about how America has great promise, with tons of context and sensitivity, my enviable knowledge of history rivalled only by my magical reading of every American mind:

Why America Will Grow

The United States of America, a large country in North America, might find it tough to convince the world about its human rights record, but its recovering economy might make it an attractive destination for investment. Notwithstanding reports of torture, discrimination and widespread gun violence across the cities and countryside, investors must not lose confidence in its economic fundamentals.

The Americans are very entrepreneurial, “pull yourself up by your bootstraps” being a common local saying. A vastly under-regulated economy, however, has made entrepreneurship and even jobs very risky. In 2011, the citizenry stood up against vested financial interests that were sending the country to ruin, but these eventually fizzled out when entrenched corruption made sure no one truly responsible for a huge economic crisis that took place in 2008 went to prison.

Another challenge is cultural – Americans are influenced by Christianity, which teaches that all sins are forgiven if one accepts the Lord. This explains the high rate of crime in cities, where one cannot walk peacefully at night for fear of being mugged or killed. This has scared many investors from setting up permanent enterprises in America.

However, change is tangible. Say what you will about America’s many skirmishes in Muslim countries, its alliance with some others has brought a refreshing change in culture. Examples such as Benazir Bhutto in Pakistan and Tansu Ciller in Turkey have driven home the lesson that female leadership is possible, and the US is learning quickly. This month marked the selection of Hillary Clinton as the nominee of one of the two large parties in the US. However, Clinton’s status as a previous President’s wife brings up various questions about dynastic politics in this country much criticised for its inequality.

The conclusion we must derive is to wait and watch as America cleans its act. It has great potential to be the top investment destination of the next decade.

The Supreme Court bench comprising of Justice Chelameshwar and Justice Sapre delivered a judgment, which will have a widespread impact on governance of higher education in India – Dr. Janet Jayapaul v. SRM University, in continuation of their “penchant” for education, recently reflected in Haryana Panchayati Rajdecision, delivered by this very bench.

By holding that a deemed university is ‘state’ under Article 12 of the Constitution of India, courts have opened the doors for application of even ‘vertical’ fundamental rights to these institutions. For an outsider to the practice of law, it may sound like an issue of mere technicality and semantics wrapped up in legal jargon. However, this case has a great potential in playing a very important role in infusing constitutional values in administration of these educational institutions. The issues such as gender discrimination, curbing of freedom of speech, right to privacy, etc. within the college environment are no more merely questions of propriety and culture, but also amenable to a claim in a court of law. Therefore, the outcome of this semantic exercise is very real, not just for the purposes of immediate case that the court was involved with, but for long-term educational reform in India.Facts of the Case

The appellant in this case was a professor teaching in the SRM University. He challenged the illegality of a notice served to him relieving him from his services. Madras High Court dismissed a writ petition filed against SRM University holding that a writ petition under Article 226 cannot be filed against a deemed university as it is not ‘state’. From this decision of Madras High Court, an appeal was filed in the Supreme Court. The Supreme Court held that a writ petition may be filed against SRM University and set aside the High Court’s judgment as SRM University is a “deemed university” declared by the Central Government under the UGC Act, 1956.

The decision: Deemed University is an authority under Art.226, and ‘state’ under Art.12

This writ petition was challenged on the grounds that the University is “neither a State nor an authority within the meaning of Article 12 of the Constitution of India and hence it cannot be subjected to writ jurisdiction of the High Court under Article 226”. It seems that the decision of the high court is anyway misplaced and does not follow the existing authorities on this issue of law.

This was also reflected in the expert opinion submitted by Harish Salve, where is stated,

“While deciding such issue is always to test as to whether the concerned body is formed for discharging any ‘Public function’ or ‘Public duty’ and if so, whether it is actually engaged in any public function or/and performing any such duty.” He further clarified that a body need be a state or its instrumentality for being subjected to writ jurisdiction under Article 226: “the expression ‘any person or authority’ used in Article 226 are not confined only to statutory authorities and instrumentalities of the State but may in appropriate case include any other person or body performing ‘public function/duty’.”

This submission of Salve also confirms with the earlier decisions of the Supreme Court. In the case of Andi Mukta Sadguru. v. V.R. Rudani, which is also extensively cited by the court in this case, the court had held,

“The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non- fundamental rights. The words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State”. (emphasis added)

The crux of the judgment lies in Paragraph 22. The court holds that Deemed University is “state” within the meaning of Article 12, though the issue in front of the court did not require it to decide if the university is a “state” under Article12. The court had already concluded that ‘providing education’ is a ‘public function’ and, that SRM University is performing that public function. The combined effect of these two findings is that the case already satisfied the requirements for maintainability of a writ petition under Article 226 of the Constitution. The additional finding of the court that SRM University is “state” has wider impacts.

The impact of this decision

According to the decision in Andi Mukta, it seems that since it is “state” under Article 12, a writ petition against Deemed University directly to the Supreme Court should also be maintainable. However, the relevance of the question – whether a deemed University qualifies to be ‘state’ – is not just relevant for the procedural issues such which court to approach. It is also relevant to determine if a body can violate certain fundamental rights (or against whom can the fundamental rights be claimed).

In our constitutional scheme, essentially, there are two kinds of fundamental rights. This distinction is made on the basis of whom it can be claimed against (or who can violate it). This distinction is apparent in the way fundamental rights are worded. For instance, Art.15(2) states, “No citizen shall be…subject to…”. However, Art.14 is worded as such: “State shall not…”. This means that while the second kind of fundamental rights can only be claimed against State (vertical rights), the first kind of fundamental rights can also be claimed against private individuals (horizontal rights). If court had held only that a deemed university is an authority against which a writ petition can be filed under Art.226, the horizontal rights would be enforceable against a deemed university, but not vertical rights. Since the court held that a deemed university is also ‘state’, even the vertical rights will be applicable. This means that several doctrines under Art.14 such as that of reasonable classification (i.e. in any purported action of inequality, there should be intelligible differentia for classification, and it should have rational nexus with the object) and arbitrariness will now be applicable to deemed university. It also means that other vertical fundamental rights, such as rights under Article 19 including freedom of speech can now be claimed against a deemed university.

The contours of these legal claims against deemed universities will depend on how courts decide the future challenges arising due to this holding. However, it can only be hoped that this judgment will convert certain questions of propriety in the governance of higher educational institutions into constitutional challenges.

In Federico Fellini’s masterpiece, La Dolce Vita, the wistful faux intellectual, Mr. Steiner remarked – “I am too serious to be a dilettante, and too much of a dabbler to be a professional.” Lets call him and his ilk ‘serious dabblers’ for the sake of convenience. This sentiment echoes among many of the privileged class of my generation. A class which grew up witnessing economic liberalization, cultural glasnost, breaking of traditional mores of defining ambition, profession, gender and relationships – it was promised that sky was the limit, at least till you ‘grow up’.

And this is the sentiment which lies at the point of departure between the swathes of serious dabblers on one side and the career dilettantes and professionals on the other side.  The protagonist of Tamasha is a true itinerant at heart. He is a wandering story teller fascinated by the tales of war and conquest, love and heart break, of epics and myths. But like Naseeruddin Shah in Monsoon Wedding, Boman Irani in Lakshya and Balraj Sahini in Waqt, our protagonist’s father is a child of India’s partition. Partition was a bitter tragedy which instilled a diehard spirit of self denial, hard work and zealous enterprise among those who started lives afresh. Such enterprise scoffed at wooly ideas of philosophical self discovery – an indulgence reserved only for the unambitious and unworthy. It is no accident that the high-achieving father in the movie is domineering and judgmental – an overpowering authority whose slightest disapproval is like a death knell to the son. In the face of such scathing scrutiny the son gives up.

With the automated monotony of what we call ‘growing up’, his creativity gets stifled and he finds himself in a corporate desk job. He makes soul crushing power point presentations using cliché after cliché to disinterested clients. His gift of inventive story telling falls flat in the face of regimented corporate speak with its punctilious rules of grammar, syntax and economy. His boss, once an entrepreneur, is now a happily risk averse corporate head who likes predictability and a market beating computed annual growth rate of profitability.

The protagonist has convinced himself that storytelling is an inferior calling. He is firmly ensconced in the corporate straitjacket and has throttled his original self. At a subliminal level he knows that the limited liability of the corporate form is causing him limitless pain but he has deliberately rendered even his gentle iconoclasm comatose. Till one fine day an old flame who had once witnessed the free spiritedness of his rolling stone days jolts him out of his hypnotic trance. So a ‘dilettante’ turned ‘professional’ was confronted with the fact that he has become a turncoat. This desperate awakening triggers a disturbing bipolarity in him. He is not sure where he belongs. He is too scared to pursue his passion and yet too revolted to turn up at the gut wrenching guillotine of creativity at work.  How he reverts to pursuing his childhood passion is a delightful process of self realisation and I strongly urge you to watch the movie.

But coming back to the scourge of the serious dabbler. Blessed are those who have a passion, are convinced that they are good at it and have the luxury to pursue it – like our protagonist. Or those who love the stability of a corporate life – the smooth income stream, promotions and bonuses and the appearance of success by association with the entity they work for- like the boss of the protagonist. The ‘serious dabblers’ are ailing. They dislike the ritual of turning up at work. They have read enough facebook posts and buzzfeed articles to know they are not alone in this state of disquiet. This brews a growing discontent and false sense of entitlement that they are cut out for something else – something more meaningful and rewarding which they will stumble across one fine day. But either they lack a passion or the conviction to pursue their passion thereby getting drawn into a vicious cycle of longing and self pity. More often than not, the happy resolution for them is the realisation that they have missed the ‘follow your passion bus’ and are making decent money in any case. So they follow the words of Ramadhir Singh, the pragmatic ganglord in Gangs of Wasseypur – “apni bhavnaon ko dalon apni gand mein..’ (i.e. stuff your feelings up your ass, and just get on with it). But for those who are unable to reach this convenient compromise, life can be like that of the forlorn Mr. Steiner.

Ranbir Kapoor has become the quintessential vagabond – the ‘khanabadosh’ of our times. However unlike his grandfather Raj Kapoor, the original wandering tramp of Bollywood, Ranbir Kapoor’s characters do not come from rural poverty or urban squalor.  They grow up in Golf Links or Pali Hill, have rich parents and privileged childhoods. Therefore the personal conflicts that they face can seem elitist compared to those faced by millions in the country who struggle to live a life of basic human dignity.  It reminds me of the poignant scene in Richard Linklater’s masterful ‘Boyhood’ where the rich white kids of a well off family are struggling to ‘find themselves’ whereas the poor immigrant Mexican kid who did odd jobs to pay for night school finally bags a white collar job and is thrilled to bits. You could either take the father’s side on this one and command the vagrant son to dutifully climb the corporate ladder, or choose to be sensitive and respect the subjective relativity of each ones’ personal demons – the call is yours.

But in this trichotomy of being a dilettante, a professional or a serious dabbler, please avoid being the third. Because it didn’t end too well for Mr. Steiner.

Why is IP regulation required for jokes?

Certain expressions are already copyrighted. The copyright may be claimed over the specific performance (videos) or the collection such as in case of books. However, this post aims at focusing only on the content of a joke. We may, in principle, agree on the premise that when a comedian puts some creative efforts, his creative skills should be protected. Whenever we face an object that can be regulated, law seems to be the obvious regulator. However, the question that arises is, should this regulation be based in law? Lawrence Lessig, in his book, Code 2.0, suggests that essentially, there are four regulators: Market, norms, law and architecture. In this post, I adopt this very framework of regulation discussed by Lessig to understand the regulability of jokes.

Market and evolving architecture of jokes

In early 20th century stand-up comedy, the jokes mainly comprised of one-liners which were considered to be the common property. Later, the creation of jokes itself became more important. This can be attributed to the market where competition required the generation of joke content and not just performance. Therefore, comedians found themselves more invested. This was also affected by several changes in comic markets which furthered the demand for content.  This market demand also changed the structure of jokes in stand up comedy. The jokes, which earlier took the form of one-liners, were now divided into set-up and punch line. This shows the interaction of market and architecture as regulators of stand-up comedy industry. In the following sections, I will discuss the relevance of market and architecture in evolving norms and legal rules.

Evolution of norms in Stand-up comedy

Some of the classic writings on jokes considered the protection purely in terms of copyright. However, the later studies have argued that due to the existence of the norms in the industry of stand-up comedy, there is no need of legal protection. The norms governing the industry, though informal and without any legal backing are effective and extend from ostracism and badmouthing to at times, physical violence.

Earlier, when the jokes were mainly one-liners, the repetition of jokes was more acceptable and the rights of the creator existed in performance rather than in the joke content. However, a study conducted by Oliar and Sprigman shows that with later changes in the structure of jokes, the norms that exist in the industry of stand-up comedy no more recognise joke-theft justified. Further, the norms of the industry no more recognise the jokes themselves as commons. Therefore, these market changes also affected the change in norms of stand-up comedy industry.

Law as a regulator of IP rights over joke

A joke is essentially a literary creation like a poem, story etc. Therefore, at least in theory, it will merit copyright protection. However, the theoretical protection itself is not sufficient to sustain a substantial legal claim. This is because of the idea-expression dichotomy that lies at the heart of copyright. Copyright law protects the expression and not the idea. Another important, though not doctrinal concern is the costs attached with litigation. Sometimes, the costs may just overwhelm the market value of joke. Though not through copyright, the issue of joke stealing has come up in front of courts in several different forms. For one-liners, the tort of passing off may be claimed, if that one liner is an identifier line for the comedian. One such claim was also successfully made in in Foxworthy v. Custom Tees, Inc. (879 F. Supp. 1200 (N.D. Ga. 1995)). In some instances, the cases have also been filed under the claim of misleading advertisement.

No property regulation can ensure the eradication of theft, but it should ensure that enough protection to property is given that investing in property remains worthwhile. At the same time, we should be careful in expanding legal protections to every creative activity. This also works with jokes. Therefore, the essential question that will have to be asked is: whether the regulators other than ‘law’ are sufficient to protect the creativity? As demonstrated above, market, architecture and norms collectively provide sufficient protection to creativity in context of jokes.

(Thanks to the timely vacation and internship opportunities, both of us were lucky to witness the ongoing proceedings in the Aadhar matter at the Supreme Court)

A degree of finality is associated with the decisions of the Supreme Court by virtue of its position at the top of the hierarchy of courts in India. At the end of the day, however, the Supreme Court is final, but not infallible. Judicial remedies in the form of review and curative petitions are available to account for such fallibility, while at the same time, ensuring a certain degree of finality through its strict procedures.

The Supreme Court’s latest order in the Aadhar case (October 15, 2015), however, seems to have created a new nebulous remedy which strikes against this essential characteristic of finality associated with the decisions of the apex court.

The Three Orders

After multiple hearings over the past few months in the Aadhar matters which began in 2012, a three-judge bench comprising of Chelameswar J., Bobde J. and Nagappan J., passed three orders on August 11, 2015. By way of the first order, the bench noted that the matters involved certain “questions of importance involving interpretation of the Constitution” and were, hence, required to be placed before “a bench of appropriate strength”. In furtherance of the same, the bench directed the Registry to place the matters before the Chief Justice for appropriate orders. Further in the second order, realising the urgency of the matters, the bench noted the desirability of an expedited hearing. The third order containing interim directions sought to balance the various competing concerns raised by the parties till the ‘bench of appropriate strength’ finally decides the ‘questions of importance involving interpretation of the Constitution’ i.e. the constitutional status of the right to privacy (hereinafter interim order).

In paragraph 3 of the interim order, the bench, inter alia, restricted the usage of Aadhar cards for the purposes of only two social welfare schemes – namely, the public distribution system and the LPG distribution scheme.

The Interim Applications

Subsequently, the Union flanked by a number of governmental agencies like the RBI, the SEBI etc. filed applications seeking clarifications and/or modifications of the interim order. To put it briefly, they argued that the interim order should be clarified and/or modified to permit the voluntary usage of Aadhar cards for other social welfare schemes as well. However, the Writ Petitioners submitted that such applications cannot be entertained by the three-judge bench and should be adjudicated by the ‘bench of appropriate strength’ supposed to be constituted for determining the “questions of importance involving interpretation of the Constitution”. In doing so, they relied on an order of the Supreme Court in Modern Dental. After hearing the parties on the interim applications, the three-judge bench passed an order on October 7, 2015 holding that these “applications for modification are also heard by a larger bench” [emphasis supplied].

What is interesting to note is that the Court used the phrase “a larger bench”. Arguably, ‘a larger bench’ can mean one of the following two things – (a) any bench with more than three judges OR (b) the ‘bench of appropriate strength’ which finally decides the ‘questions of importance involving interpretation of the Constitution’.

A Bench only For Interim Applications

The Chief Justice constituted a five-judge bench, on October 9, 2015, after being concerned about ‘sparing’ nine judges. Things took an interesting turn on October 14, 2015, when at the beginning of the hearing, the Chief Justice made it amply clear that the five-judge bench was constituted only for the purpose of adjudicating the interim applications. This observation was confirmed in the order made yesterday (October 15, 2015). He further observed during the course argumentation that the final hearing (on the existence of the right to privacy) may be conducted by a larger bench comprising of either seven or nine judges.

Clearly, the five-judge bench was constituted specifically for adjudicating the interim applications. Therefore, the Chief Justice understood ‘a larger bench’ to mean (a), as mentioned in the section above, and not (b). With all due respect, we are of the view that this is not only an erroneous understanding of the order (dated October 7, 2015) but also has far reaching implications on the aspect of ‘finality’ attached to decisions of the Supreme Court. It would have been perfectly fine if this five-judge bench was primarily constituted to decide the status of the right to privacy, and in passing, it also adjudicated the interim applications.

Review in Disguise

Intriguingly, the Chief Justice’s understanding effectively creates another nebulous stage in Supreme Court litigation, distinct from the stages of review and curative petitions.  Further, such a stage is without any basis in law – neither does the Constitution nor the Supreme Court Rules or precedent support such an understanding.

To account for the characteristic of infallibility, two remedies (albeit at different stages of litigation) are available to a litigant.

The first remedy is to file a review petition under Art. 137 of the Constitution read with O. XLVII of the Supreme Court Rules of 2013. The Supreme Court has the power to “review any judgement pronounced or order made by it” under Art. 137 in accordance with the procedure laid down under O. XLVII of the Supreme Court Rules of 2013. The second remedy is to file a curative petition under, and in accordance with the procedure laid down in, O. XLVIII of the Supreme Court Rules of 2013. This remedy is available only in cases wherein a review petition has been filed and dismissed by circulation.

The setting up of a five-judge bench specifically for clarifying and/or modifying the interim order is essentially a review petition disguised as a referral to a larger bench. This inference is further supported by the fact that O. XLVII, R. 4 of the Supreme Court Rules of 2013 envisages modification of decisions by way review petitions and not by constituting larger benches.

Lucknow has always been my second home. After my grandmother’s death, my mom and grandfather shifted from Calcutta and permanently settled there in 1991. My mom says she bought every single light bulb, fan and painting in the house all by herself since my grandfather was busy with work; and did it all while she was pursuing her Ph.D. To cut a long story short, that house was my childhood getaway- where my grandfather spoilt me in absolute violation of the ‘How to handle kids’ Code prescribed by my mom. Over the years, the city grew on me- the regular visits to the zoo, the chaat at Neelkanth, the kebabs, watching the first day first show at SRS and shopping for Chikankari work at the Chowk. My grandfather continued to live there all by himself despite his rapidly deteriorating health, bound by the love of his neighbours and perhaps the peace he felt in the house.

Last week my parents informed me that they had finally managed to convince him to move in with us and that we will be putting up the house for rent. Although I was happy that he will be in our care, I was quite shocked- this felt like an abrupt goodbye. So as soon as my vacations began, we set off for Lucknow. The house looked just the same, except there was board hanging out the front which said “Available on rent, Contact”. Over the next two days, my family toiled through boxes full of paperwork, met neighbours, relatives and several interested tenants, while I mostly slept on my favourite sofa in the house, visited the corners I used to hide in as a child, strolled on the terrace and read the Readers Digest editions found in the store that went as far back as 1961. The night we were to leave, we discovered a huge box with my grandmother’s name written on it. It had her books, her own writings, her Ph.D. thesis, her astronomical charts, and her photos. I realised how our tastes matched as I went through her collection of novels, and how we would have made great friends if we had met. It was strange how cleaning this 24 years old house gave me the opportunity to meet my grandmother for the first time.

Soon it was done- the house was put up on rent, all the papers sorted through and the furniture sold. It was time to say goodbye. I felt quite tearful at the thought that this would be my last visit to the house, and in all probability, to Lucknow. Then I looked at my grandfather. I feared that he would break down, but he showed no signs of emotion. I asked him if he would miss the house. He simply  smiled and then went and sat in the car outside. I don’t know if he had already made peace with the situation long ago, or if at his age one understands the futility of attachment, or perhaps acquires the strength to overcome it. I didn’t shed a tear either. If he didn’t cry at the thought of being forced to leave the house he had built, loved and lived in for more years than I’ve lived on the Earth, how could I?

Every journey I take away a lesson from. And yet I sink back into immanence the moment I am done imbibing it. Makes one wonder about the fallaciousness of being human. The million platitudes pushed our way to help us reconcile with the contrarian, oft disappointing nature of existence within society – they serve the purpose of coating the latter with a tint rosy enough to make it palatable.

That remains the tragedy of our lives; that we repeatedly use coping mechanisms to brush disillusioning experiences under the proverbial rug. I truly believe that the hopelessness that accompanies humanity has been the reason for religion, the arts, for every possible human pursuit which effectively diverts the mind. Undoubtedly, then, having a more evolved mind than the other species is a double-edged sword. Indeed we have the benefit of being the lead contenders in the Darwinian order. Simultaneously however, we are cursed with the ability to think. Now that posits a challenge to the way our species lives, because we never did seem to be satisfied with the primal alone being taken care of.

We crave purpose, meaning if you will – an answer to why our desolate, individual selves have been placed on this earth. Only the human could be so arrogant as to believe that he was created to fulfil some pre-ordained destiny, crafted solely for it. The problem of believing one is special is that disappointment is inevitable when one holds a mirror up to that belief. The mirror of the humdrum sameness of human existence shatters the illusion of uniqueness that has been carefully built to envelope us; comfort us, as it were. Faithlessness is the ineluctable outcome of such a comeuppance of one’s ego.

And then commences the internecine struggle within oneself. It is a churning that shall never be laid to rest – because it shall never be able to locate the element that would stabilize it and restore it to the tranquil lake of self-assurance it once was. Every campaign peters out in gusto eventually. So too with the battle against the monster of existentialism.

So how does one overcome this?

One doesn’t. The average human reaction would be to suppress such an uncomfortable realization. As a corollary of hitting this plateau, we adopt subversive tactics to tackle the issue. We dilute our idealism, become more practical in outlook – and forcibly drown out that which won’t stop discomfiting our otherwise confident sense of self. We conveniently term this form of escapism as “growing up”. So convinced are we of the need to act sensibly that we attach connotations to the act that the establishment deems positive – it is thus viewed as a necessary step in the direction of adulthood.

After all this turmoil, we expect sanity of ourselves, in spite of the countless paradoxes we are schooled to desire. The discourse of normalcy within which we seek to pigeonhole everybody is stifling for this reason itself. We foolishly create impossible ideals to aspire to; ideals which are deliberately calibrated to remain unfulfilled. Because somewhere we know that aspiring to these unreachable ideals obfuscates our internal vacuums. It is these voids that we are too terrified to confront as our uncomfortable truths. We create a purpose to have a purpose. It is thus that we choose to fight our demons of despondence.

The resolution to this conundrum lies beyond the realms of our comprehension, primarily because we have yet to design the individual who would be socially conditioned without having acquired the burden of social conditions. Even assuming that such an individual exists, he has not been allowed to proliferate his nihilism in the public space, lest he corrupt the filmy gossamer the unsuspecting sheep have smothered themselves with.

What would we find were we not to teach ourselves to construct our time on this planet as a medium to deliver on imaginary ideals?

One marvels at the possibilities.

One always wonders if there is hope.

As I write this, I am less than 24 hours away from graduating, once and for all, from this place that has been my home for the last five years. And if someone asked me right now, ‘what is it that you learnt in law school?’ , I’d have to say: “I learnt to have fun!”

It’s ironic that my first ever post on 19(1)(a) will also be my last one. But if I didn’t post on this typically law school forum once before I left, I’d probably regret it for a long time to come. And God knows, I already have had a few significant ones in this place!

To be honest, sentimental hand washing is not something we are used to seeing on this august forum (which is usually reserved for the far higher purpose of entertaining cat fights!). However, I would be lying if I said I won’t miss this place…a lot. And, for a lot of time to come, possibly… forever.

Soon, we shall be lost to law school. Another set of alumni.  And while, there seems to be no prima facie ‘rational’ reason to explain what connects law schoolites through generations;  it probably is the knowledge that, like it or not, we chose to be here. No matter, if it was our first option, whether our parents forced us to write the CLAT, or foreign admissions just didn’t happen; in the end, we did nail that one two hour paper…and in doing so, became an unmistakable part of this place.

 I know, a lot of things aren’t the same as they were before. And when I came in, we were systematically taught by some of our seniors that those changes were proof of falling standards of law school.

In the last 5 years, I have been witness to and, more importantly, lived through quite a few significant moments. We won Jessup, Man Lachs, made finals of Vis, helped poor farmers in the remotest of areas, won an international debate and kept getting our jobs. We also fired our best professor, vandalized the acad, mismanaged funds and never fixed the damn internet. Mostly though, we (or at least some of us) drank a hell lot, smoked like chimneys and abused illegal substances that so deserve to be legal (:p).

And yet, here we are, after around 3000 hours of class with over 90 exams in 60 courses with 58 projects down the line…just as abnormally normal as the ones who have gone before us.

Are law schoolites of today failing at life more often? No. Are some of them losing their way abysmally? Yes. Are some of them poised to change the world? Hell Yes!

So…where is the fall? Maybe, just in our attitude towards this place.

What is often ignored in the cacophony of negatives is that there is still ample learning for those who want it. Ample opportunity for scam for those who want that. And, in my opinion, that’s been the best and the most unique thing law school has had to offer: The opportunity to do what you want and be who you want to be.  (I believe debaters have a term for that stuff :p)

Because college, for me, is the ideal (and probably the only) time for experimenting and learning new things…about the world and yourself, without serious repercussions. We can be stupid without fear. We can and should make mistakes.

And as long as NLS continues to remain the same open, all-encompassing society it has been in the past, law school and law schoolites will not fall. For the one thing that has not changed (and I hope never does) is that, no matter what and how many attempts at the opposite, law schoolites have remained zealous guardians of their own liberty.

My parting two cents: Guard it with pride, flaunt it, experience it, and most of all, strive to be worthy of it. This freedom is really hard to come by anywhere else. 

Maybe, law school was, once upon a time, a more ‘classroom-oriented’ rigorous place. However, I think today’s law school is rigorous for those who want it to be. There are more academic activities outside class, more opportunities for learning the law there.

It is also true that some of our best professors today happen to be ad-hoc faculty. But, for a professional course, it is naive to expect otherwise. The focus has shifted and needs to continue to shift to learning from the best professionals in the industry, coming back and teaching us in short bursts. Single-credit courses, seminars, special lectures, even teaching one or two modules out of a course characterize the way forward. Gone are the days when the best professionals in the legal area decided to shun work and become permanent faculty for peanuts. And while, some of us may choose to whine about it and make great romantic arguments about money-mindedness and what not, the smarter (or atleast the more dynamic ones) ought to adapt.

We need to create space for the above, either by combining some of the existing courses, reducing class hours for some ones or figuring other alternatives. That classroom learning has better substitutes is undeniable (and I think project exemptions are one of the many ways the college already recognizes this). Our aims have changed too. While some of us love the law, many of us see learning the law as ancillary, and as an instrumentality, to other aims. (I am not sure which part of that divide I fall in personally!)

That said, it true that our lead on the top has narrowed. Or more accurately, the top tier now has some non-schoolites and does not have some law schoolites. My guess is, that’s only natural.

In any case, maybe, when a national shooter, a female footballer who nails almost all males in her batch at it, a steadfastly driven Rhodes scholar, two of the sharpest logical minds with the eloquence that could put Obama to shame on most days, a perpetual convener who has arranged for more courses than can be counted, a politician whose heart very literally beats for anyone who is screwed and many many others get together for five whole years and work, sometimes in their self interest, sometimes for the greater good, mostly just discovering themselves without realizing it, the results are…well, pleasantly unexpected and unexpectedly grand.

My aim is not to paint an overly rosy picture of law school or the world. However, this happens to be the only place in my experience where one can pick up a conversation with 350/400 students (and quite a few MPPs too :p) and learn something utterly new and interesting.

I cannot end this post without mentioning the administration and our VC once. And, while I will be hard pressed to say that I agreed with all decisions made by the admin (I have reserved my strongest disagreement with some measures) however, on the whole, I am glad I was a student here during his tenure. He has, and at various points most others have, been encouraging to say the least and assiduously liberal to say just a little more.

As far as I am concerned, I think I grew as a person in law school. For that, I have a certain sense of gratitude towards this place. It allowed me to prioritize things my way and live on my own terms. It was a conscious decision from me to not consider classroom academics as very important. It allowed me the time to try out various different things, but mostly, after a somewhat checkered school life, college was, for me, a phase of life where I  just wanted to ease out. NLS allowed me that, and for that it will always have my thanks.

In the end, as we walk off into the sunset and face the ‘real’ world (a phrase that continues to confuse me more and more each day)…new challenges, new friends, new experiences await. For now though, there are the old memories which bring about a satisfied smile and a few tears of nostalgia.

And if I might take just another moment to preach to the choir, I’d say:

‘Always hate losing, I hated it with all my heart. But the only thing I hated more…was to not try for the fear of losing.’ 

Goodbye my fellow law schoolites and good luck!

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.[1] 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,[2] the absence of a standardised procedure has resulted in extreme irregularities/injustices and even “abysmal” results.[3] 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”.[4] 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’.[5] 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”.[6] The Record of the Examination of Accused and the operative parts of judgement of the court are to be interpreted similarly.[7] Further, an interpreter employed by the court for this purpose is bound to state only the “true interpretation of such evidence or statement”.[8] 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.[9] 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,[10] has judicially been interpreted to be an important part of it, as part of the Right to Life and Personal Liberty under Article 21.[11]  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,”[12] it is accepted that criminal proceedings adhere to Principles of Natural Justice and the ideas of Fairness.[13] 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.[14] (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,[15] 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,[16] 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,[17] 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.[18]

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”[19] which affects the criminal justice system.[20] In Jai Singh v. State of Karnataka,[21] 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,[22] 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[23]  and that of the Apex Court in Shivnarain Kabra  v. State of Madras.[24]

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,[25] 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”.[26] 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.[27] 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.[28] 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”.[29] Inspiration may be derived from these, as well as the African model,[30] 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.