Prisoners of state apathy

The overwhelming majority are almost always poor and caught up in the mindless and achingly slow coils of a corroded system. People like this can spend a lifetime locked away without charge or proof of guilt. Is there relief in sight? On Friday a new amendment to the Code of Criminal Procedure came into effect. This allows courts to release prisoners on the promise that they will appear in court when required, without requiring them to post bail or find further sureties. The privilege is given to those who have spent more than half their possible sentences in jail while awaiting trial. It doesn’t apply to prisoners whose crimes attract a possible death sentence.

The move is a small lamp in the otherwise lightless terrain of criminal justice reform. It will give welcome relief to the victims of the criminal justice system and must be appreciated as such. Its real value though will depend on implementation and the jury is out on that one. India’s legal terrain is littered with fine laws that are trammelled into dust by the boots of bureaucratic disobedience. The new amendment provides a typical example. The president signed on it a year ago, but it came into force just this week. It embodies little more than the directions given by the Supreme Court a decade ago. But the functioning of the police, the prison, the courts changed little and barely responded to the very clear diktat of the apex court.

It’s not as if the problem has not been understood. As long ago as 1978 the Law Commission’s report on Delays and Arrears in Trial Courts recommended that criminal cases must finish within six months. But even where statutes explicitly require day-by-day trials this is ignored. In 1987, it warned population increases demand more judges and asked for 50 judges per one million population instead of the abysmally 10.5 that we had. This has not happened. The Supreme Court repeatedly assures us that the right to speedy justice is a fundamental right. Nice words, little follow-up. When faced with the horrible reality of 56 lakh pending criminal cases, each segment of the system points accusingly at the other. In fact the faultlines of guilt run right through the criminal justice system.

The police may take months to frame a charge sheet. It is the duty of the state to ensure that accused prisoners are brought before the court regularly and afforded effective hearings. But, as the Law Commission points out, the police may deliberately refrain from producing all material witnesses on the same day, with the object of clearing lacunae in the prosecution evidence once the defence’s case is revealed through cross examination.

Adjournments for the flimsiest of reasons come easy as well. Lawyers on both sides are notorious for using delaying tactics to suit their case or convenience. The judge as well may be absent when the accused and witnesses are sweating it out because there is other pressing work. In the endless round of appearances short-staffed police often refuse to provide necessary escorts to take the accused to court. Pleading lack of vans or escort services, prison authorities will then return the court warrant instead of producing the accused and seek another later date for appearance.

So routine is this that in some states prison authorities have made up a nice little stamp that spares them the bother of writing the request down each time. And the court accepts all this without much demur. The Commonwealth Human Rights Initiative analysed 150 cases in Delhi’s Tis Hazari Courts. In trials that experienced undue delay, as many as 68% of the hearings were ineffective — either no proceedings were held or its purpose was not served. Of the three major causes of delay, witness absence accounted for 19% of hearings being rendered ineffective; absence of the presiding officer accounted for 15%. Almost 10% of the hearings were ineffective because of the absence of the accused.

Whatever the reason, delay and malfunction is now so ingrained that it hardly bothers a conscience but matters only to the little people being ground through the mills of justice. The passage of the latest amendment at least recognises there is a real problem of justice delivery. But until there is genuine reform across the system, piecemeal legislation can only give limited and unsatisfactory results. Meaningful reform requires putting in place an interlocking system of accountability across the criminal justice system — from police to prosecution, to defence attorney, to court official and judge, to forensic, prison and probation staff — which addresses the uncomfortable questions of where liability should lie when citizens are subjected to sub-standard systems whose actors are never asked to face trial for the pain they inflict on others.

The writer is director, Commonwealth Human Rights Initiative, New Delhi
director@humanrightsinitiative.org