Accessing the Criminal Justice for Disabled in CrPC - Kartik Bhatnagar

In India, disabled people are pushed to the edge of the community in the society through prejudice and systematic alienation, based solely on ostracization and stigmatization of the able-bodied. They face discrimination because they are considered different types of creature by the people in the society. To protect their liberty and dignity special procedures have been laid down in the law. The “subject of law” has been envisaged based on gender, race, or disability across the legal systems of the world[1]. It is important to understand the prevailing law of procedure to access the justice for the able-bodied. The law of procedure has been laid down in Code of Criminal Procedure (CrPC), to provide suitable circumstance and comfort to the person with disability along with special procedures regarding the trial of mentally ill person, even though there is no exceptional treatment provided to the disabled person before judicial authority. The rights for the person of unsound mind or are incapable of making their defence are laid down under Section 328 to Section 339 in CrPC. The person is of unsound mind is determined by the magistrate and rights of special procedures under law, as in the Section 330 of CrPC, it is written the person with unsound mind should be provided with comfortable space in the custody as they seem fit. The psychiatric treatment takes place in custody to protect the accused from harming others and to prevent self-harm. The court is under obligation to understand the state of the disabled person regarding their treatment in the society as well as by their family members, then attempt to make the disabled person to understand the proceedings[2]. The court can take the help of an instructor or special educator for that purpose. The laws do provide a special procedure but they are full of loophole where discrimination and alienation of person with disability take place, such as activities in medical centres which are not under the magistrate authority and the treatment of disabled people is not proper as well. The medical treatment by using medical science is not really providing cure for the people else it backfires and makes conditions worse for the disabled person. It was seen in the case Veena Sethi v State of Bihar, the accused was forced to stay in the medical facility more than he would have been convicted for, thus taking eternity for the court to make a decision. The law itself gives enormous powers to the medical facility to detain a person in custody. Since, section 328 and 329 of CrPC states that if the court determine any prima facie against the accused, the court should order to postpone the trial till the clinical psychiatrist opines[3]. In case of accused of unsound mind, the court usually rely on the testimony of expert witnesses i.e. clinical psychiatrist and medical report sent by the facility where the accused was detained. Gender also plays a role in that; women are who face discrimination in the society may also face violation in the Medical Center. Education does not liberate people from their degraded mind, therefore, the people in Medical Center may use their power in an improper way. Since, their testimony is given credit i.e. the person can be detained in custody based on their report. Proper caution should be exercised using the medicalized notion of psychiatric disability. The fight for rights and liberty for people with disability is not over yet. The provision lacks passivity in providing remedy for legal framework, it can be attributed that the implementation of the law is still not proper as it gives enormous power to certain authorities. Thus, the problems should be recognized and rectified by the concerned authorities.

REFERENCES

1. Subject of Law, TheFreeDictionary.com (2020), https://encyclopedia2.thefreedictionary.com/Subject+of+Law (last visited May 17, 2020).

2. V. C. Chacko v. T-C. State

3.Veena Sethi v. State of Bihar, (1982) 2 S.C.C. 583.