The paper Delay in Process, Denial of Justice: The Jurisprudence and Empirics of Speedy Trials in Comparative Perspective by Indiana University Maurer School of Law professor Jayanth Krishnan and OP Jindal Global Law School dean Raj Kumar is to be published in the Georgetown Journal of International Law in 2011.

It examines the predicament of undertrial detainees in India since the 1979 Supreme Court case of Hussainara Khatoon, which equated the right to speedy trial as the fundamental right guaranteed by the constitution.

The Problem

According to 2010 Indian government data, 300,000 of 430,000 prisoners in India are undertrial prisoners who are unconvicted defendants in criminal cases, states the research paper.

In 2007 that number was only 250,727, which would suggest a “that number has grown by nearly an astonishing 50,000 people in just over two years”, according to the paper.

“Over a third (88,312) of undertrial-prisoners is illiterate; and when combined with those who have less than a tenth grade education, that percentage skyrockets to approximately 80% (196,954) of the entire undertrial-population.”

“Nearly two-thirds of the total number of undertrials comes from one of [scheduled caste (SC), scheduled tribe (ST), and other backward classes (OBC)] communities. Moreover, from a state-by-state perspective (excluding the union territories), in all but five states (Goa, Himachal Pradesh, Jammu & Kashmir, Karnataka, and West Bengal) at least 50% of the undertrial totals, respectively, are from scheduled castes, scheduled tribes, or OBCs. Of course, that there may be variation among and within these groups, politically and socio-economically, in their respective states is an obvious truism. But according to a highly-respected observer who closely tracks this data and is intimately familiar with the undertrial problem in India, there is a palpable sense among lawyers, rights-activists, and government officials that lower castes are unfairly targeted by the criminal justice system.

“Of the total number of undertrial-prisoners (250,727), 103,624 have been waiting for a trial for three months or less. Another 52,476 have been waiting up to six months. At the other end of the spectrum, there are 1,891 inmates who have spent more than five years in detention, which percentage- wise is .008% of the total undertrial-population.

“Upon an initial glance, these figures might be ones that defenders would offer as rebuttals to the frequent criticisms made of India’s criminal justice system. The argument might be that although it is never good to have people spending even one day more in prison than necessary, that 62% of the undertrial-population is doing so for no more than six months defies the stereotype that the Indian penal process is a proverbial black hole.

“Moreover, that only a miniscule percentage is detained for more than five years – while, again, troubling – is not nearly as high a number as what is often portrayed. In August 2010, the Chief Justice of India vigorously made this point, adding that ‘all trial judges have done an excellent job in maintaining a high disposal of cases.’

“But, in fact, the data […] deserve greater scrutiny. For one thing, there is no information on what types of charges the 62%, detained-for-under-six- month group, are facing. Otherwise put, this time-frame matters little to the person who is being held for a crime that carries a maximum sentence of thirty days but remains incarcerated for, say, five months. Similarly, for the 1,891 prisoners awaiting trial for more than five years, the question must be asked: who are these people? As stated […], there are over 52,000 people currently facing murder charges. Might all 1,891 of these people be murder-defendants? (Perhaps – and if they are indeed guilty that may serve as some odd form of Machiavellian rationalization justifying their current status. But a priori how do we know beyond a reasonable doubt that they are guilty?) And what about the other 50,000 murder-charged defendants; where are they in the process? What about the people who are charged with much less serious offences; might they be included within this 1,891 figure?

“Finally, there is a host of other questions begged and issues unresolved. For instance, how many of these undertrial-prisoners have received a bail-hearing? Typically, when an arrest of an individual is made, that person must be produced in front of a magistrate within twenty-four hours. At that time a determination will be made on bail. Regardless of the bail-decision, the police are supposed to continue to investigate further in order to determine whether a formal ‘charge-sheet’ should be filed with prosecutors, who then will assess whether to proceed to trial. What the data […] do not tell us is if the statistics include or exclude those who have been denied bail but have yet to be ‘charge-sheeted.’ In other words, if the figures from the government only represent defendants who have formally received word from prosecutors that they (the defendants) will be tried – and there are indeed non-charge-sheeted individuals languishing behind bars – then there is a serious undercounting of the inmate population.”

The backdrop

“During the framing of the Indian constitution in the late 1940s, assembly members, when drafting Article 21, discussed due process, fair trials, the right to life, and other issues; but the notion of a speedy trial was not explicitly included within the constitutional text,” recounts the paper.

“It was only in 1979 [Hussainara Khatoon v. Home Ministry] that the Supreme Court of India held that a speedy trial was a fundamental constitutional right (under Article 21) for criminal defendants. But unfortunately the empirical reality for defendants in India awaiting trial has failed to conform to these repeated judicial pronouncements.”

The paper highlights that according to the available statistical data since late 1970s the number of undertrial-prisoners has significantly expanded to the point where the vast majority of incarcerated are not those who have been convicted, but instead are simply those waiting for their day in court.

Potential solutions

Law minister Veerappa Moily had announced a plan to release a large percentage of the undertrial population by the end of 2010, reducing the number of 300,000 by two-thirds within six months by ordering the release of those charged with petty crimes.

The Commonwealth Human Rights Initiative (CHRI) has also presented a set of preliminary recommendations to remove the perils facing undertrial-prisoners.

“First, it proposes implementing greater use of technology as a means of addressing the lack and overcrowding of jails within the country. Recent data indicate that there are some 1,340 jails available throughout India to house the 430,000 individuals currently being incarcerated. From the government’s own statistics, most recently from 2007, the problem of overcrowding in jails is apparent.

“Second, the CHRI also supports the creation of a statutorily-based committee devoted solely to monitoring these detainees’ rights. The committee would be comprised of a local judge, a prosecutor, a police officer and two other law enforcement officials. The committee’s sole charge would consist of overseeing the prisoners’ well-being and facilitating their cases through the criminal justice process.

“A third initiative would be to have judges travel to the jails and adjudicate proceedings within the confines of the undertrials’ cells. Such ‘jail-adalats’ have been instituted in various parts of the country, and there are some reports on their performance.”

Besides the above, the authors have relied on various reports of committees and Government papers, which recommended:

• Increasing the number of judges in the criminal courts in order to reduce overburdened, delay-ridden dockets;
• Enhancing the technological and infrastructural facilities of the courts themselves in order to make the courtroom process more efficient;
• Promoting greater integrity by the police while concurrently encouraging the police to accelerate the investigation process so that cases do not languish and evidence is not neglected from being collected;
• Maintaining the continuity of criminal cases from one judge to another when the presiding judge is transferred mid-case (as is common in this civil service-based judicial system) to a different court;
• Discontinuing the frequent judicial practice of granting unnecessary adjournments;
• Expanding the bail-opportunities for defendants charged with less serious crimes; and
• Segregating undertrial-prisoners from those who have already been convicted.

“Leading studies have all recognized, tracking, proving, and eradicating corruption from daily life in India are enormous challenges, especially in a society where the disparities in wealth are so stark,” observed the paper to be a fundamental problem which has plagued the entire justice system in India.

A few solution-based approaches related to the functioning of the Indian legal profession have also been prescribed by the authors for the policy-makers to consider with respect to civil and criminal law practitioners.

In criminal law on the prosecution side, the scope for adopting delaying tactics by litigating lawyers taking advantage of procedural codes like interlocutory appeals provisions and seeking of adjournments should be minimised, says the paper.

Further, incentive-based and conviction-linked promotion culture in case of public prosecutors also hinders elimination of delays.

The authors commented: “Our thesis is that while on paper many of these past and present proposals have good intentions and offer some relief, greater structural and fundamental reform is needed throughout various points in the criminal justice process before the undertrial problem is resolved.”

Role of pro bono and law firms

Expounding on the role and contribution of lawyers engaged in transactional work, the paper explains:

“The other shift we believe needs to occur involves increasing pro bono legal services, particularly by lawyers working in India’s fast-growing, wealthy, private law firm sector. The financial boom within this segment of the Indian legal profession is well-known.”

“Elite lawyers working in top firms in places like Mumbai, Delhi, Bangalore, and Hyderabad are among the richest legal professionals in the world. Many of the best law school graduates intensely vie for positions in these offices, and with foreign law firms currently barred from practicing in India lucrative foreign clients routinely turn to Indian lawyers to perform much-needed legal services. As such, the profits these Indian firms turn range, as one observer has noted, ‘from high to astronomical.’

“Unfortunately, however, the success of these law firms, particularly post-liberalization in the early 1990s, has not translated into a commitment of donating pro bono legal services for the underprivileged. Yes, of course, there are exceptions, and occasionally there are charitable contributions made by law firm lawyers towards important social justice causes. By-and-large, though, there simply is no real, substantive culture of pro bono legal services – particularly on behalf of those such as undertrial-prisoners – existing within the Indian law firm sector.

“Why there is such an absence and how there can be a transformation of the status quo are questions that deserve full inquiries onto themselves, and which we leave for another day. But as we have emphasised, our view is that if real improvements are to occur for the undertrial population, there have to be both structural and attitudinal changes from the various stakeholders that make-up the Indian legal profession – including from those who are prospering today within the country’s most lucrative law firms.”

The full paper is available to read here.

Photo by Tim Pearce, Los Gatos