Dying declarations must be in the mother tongue

Codification based on assumptions is a bad idea

Another division bench, this time of the Calcutta High Court, has issued a ruling that calls for attention.

A dying declaration recorded in a language other than a person’s mother tongue was not acceptable as evidence in a court of law, the Calcutta high court has ordered.

It said that people did not speak in any language other than their mother tongue when they are dying. [Rediff]

The report does not say whether the court offered grounds for its belief that dying people speak only in their mother tongues. But it certainly seems to defy common sense. For it is reasonable to expect that a dying person will speak in a language listeners understand, rather than the mother tongue. In any case, circumstances play a major role in the language used, and therefore, weigh against blanket rules based on generalizations.

And what about people who don’t speak the mother tongue as the primary language? Their dying declarations will no longer be acceptable as evidence in court. Finally, we have not even begun to consider that such a ruling could be a final act of deprivation of individual freedoms by the state—in this case the freedom to speak in any language at any time, even at the point of death.

These are not trivial matters—a conviction for murder was overturned on this principle. The court may well have decided on the particular case according to its merits. It is altogether a different thing for the higher judiciary to codify the format for dying declarations.

The Cabinet is considering a bill to make judges more accountable and address charges of misconduct. That’s fine as it goes. But what about honest and upright judges whose decisions lack proper judgement?

7 thoughts on “Dying declarations must be in the mother tongue”

  1. Nitin:
    The rediff report cited says “it [the court] said that…”, and not “it is said that…”. A small difference, but enough to suggest that the court is not relying on “hearsay”. Not withstanding this, I agree that we have no idea what evidence that the court had about the language of dying declarations to base its decision on.

  2. RF,

    Thanks for pointing out the verb I missed.

    I’ve made the correction. It’s hard to say which is worse, basing it on hearsay, or basing it on the judges’ own assumptions.

  3. Not having access to the actual text of the judgement, I would not be so keen to jump to a conclusion.

    The circumstances of the case, as reported on Rediff, seem to indicate that court was against the idea of *recording* the dying declaration in a language other than the person’s mother tongue in this particular case (the person being illiterate). In a legal sense, the word “recording” does not refer to taping the audio, but rather to putting something on record (say by writing it down).

    In this particular case, the dying declaration was written by the Police Officer and independently by the Doctors. It seems they wrote it down in their own words/language (simultaneous translation) rather than simply writing down the exact words spoken by the person.

    As you would agree, there is a possibility of distortion of meaning in such a situation. Which is what happened – as the two different versions of the same dying declaration show.

    Rather than establishing a precedent of some sort, I think the Court was giving an explanation for the verdict in this particular case.

    As I said, without having access to the exact words of the judgement, it is hard to take a stand. More so because of the prevailing poor standards of reporting. Like the dying declaration in the case, this report itself could also be a case of the court judgement being misunderstood by the reporter. Wouldn’t that be ironical?

  4. Nitin,

    One small point-in this case the victim was illiterate and her statement was recorded in English by the cops/magistrate. Quite clearly she did not speak English and the court objected to her statement being recorded in a language she clearly did not speak. I think its a fair ruling as far as that particular aspect is concerned.

    On the other hand, a blanket ban against dying declarations in language other than mother tongue would be stupid and I am entirely in agreement with you there. However, I don’t think that is what the court intends.

  5. Vivek & Confused,

    Fair enough. As I’ve pointed out, the judgement may well be justified in the particular case. The problem, though, is its generalization. You are quite right about the possibility of a reporting mistake; so the caveat has to be “If reports are accurate, then…”

  6. @Confused: I beat you to it by 2 minutes, so I will excuse myself from the category of fools. But if you agree that “great minds think alike”, you are welcome to join the club 😉

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