BY NUSRAT KHAN
When Chief Justice of India, Justice TS Thakur, made a rare emotional appeal last week to an audience that included the Prime Minister, he drew attention to issues that have been on the back-burner for too long — the dearth of judges, the large number of cases and the perils of an overburdened criminal justice system. Proof enough that more resources and reforms are needed. But a crucial perspective that found only a cursory mention was the impact this has on prisoners awaiting trial, and the years they lose in jail engaging with a sluggish justice system.
Over the last few months, Amnesty International India has interviewed dozens of prison officials and undertrials in five jails in south India. Twenty six prisoners we spoke to had spent over two years in jail, seven prisoners had spent over three years, and two prisoners over seven years.
In many cases, trials had either not begun or had been delayed because jail authorities had not received a ‘committal warrant’ identifying the court and date of hearing. The jail superintendent of one central jail told us that undertrials’ cases could get delayed by six months to a year when their cases were committed or transferred (on account of a judicial order) to another court. The most common reason for this delay: a shortage of judges.
Rani, an undertrial prisoner in jail for nine months, had not been to a court for six months. According to jail records, her case was committed for trial before a criminal court in October 2015, but jail authorities are yet to receive a warrant with the next date of hearing.
The criminal justice system is supposed to ascertain whether an accused person is guilty of a crime through a trial within a reasonable time. Police and prison officials often fail to fulfil their roles, leading to long delays in trials. Often, however, judicial oversight of detention — which is essential to protect against unlawful or excessive detention — is also lacking.
Section 167 of India’s Code of Criminal Procedures empowers judges to extend a detainee’s custody, but only for a period of 15 days at a time, and only when the accused is produced before the judge. The core idea behind this provision is to ensure strict and regular judicial oversight to safeguard the rights of detainees.
Most undertrials we interviewed said that one reason for their prolonged trials was the lack of regular judicial oversight or review of their detention. One prisoner had not appeared in court for three months, another appeared only “two to three times in two years”. Another person who has spent four years in jail had missed court hearings at least 20-25 times during this period.
Manik, who was charged with theft in March 2009, was not produced before a court in person for two and a half years. After more than six years in jail, his appearance in court remain sporadic.
There are also other ways in which the judiciary enables the denial of fair trial rights and excessive pre-trial detention. It is by not adequately considering alternatives to pre-detention, for instance. Or by not taking note of undue delays caused by state agencies like the police and prosecution.
(Some names have been changed)
(Nusrat Khan is a Researcher with Amnesty International India. Views expressed by the author are personal. This article was first published in DNA newspaper on May 4, 2016)