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Niptara Courts: Critique of Official Discourse on Access to Justice

Anu Choudhury[1]                                                                                                                     

Introduction

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 21, Constitution of India

Article 21 enshrines one of the fundamental rights guaranteed by the Constitution of India to its citizens. It bestows on every citizen one of the most basic human rights: the right to life and personal liberty. The Supreme Court of India has widened the scope of this article by interpreting it to include rights of prisoners, the right to speedy trial, the right to legal aid, and the right to claim compensation for the violations of rights underArticle21.

The landmark judgment with regard to prisoners/ undertrials came in 1979 when the Supreme Court came to the rescue of the undertrials languishing in the jail in Bihar awaiting trial. This landmark judgment {Hussainara Khatoon v Home Secretary, Bihar, (1979)} gave a new interpretation of Article 21 (right to life and liberty) to include right to speedy trial in it. In the judgment delivered by Justice Bhagwati on behalf of Justices Bhagwati and Koshal, the former expressed shock on the state of affairs in the jails and talked of the human rights of those who are incarcerated in prisons for long awaiting trial. He urged for revamping and restructuring of the legal and judicial system so that injustices do not happen.

This landmark judgment is of great importance for the criminal legal system and the poor who come in contact with it. This particular case not only led to the recognition of one of the important right of speedy trial but it also brought to light the sorry state of affairs of prisons and legal aid in the country. However, as we will see, there is still a long way to cover to fully realize the right to speedy trial. To date it is not uncommon to find prisoners either awaiting trial or under trials involved in petty offences languishing in jails for much longer durations. The state, time and again, has tried to enlarge the scope of legal and judicial remedies to its citizens and has initiated access to justice programmes. In fact, the quest for this goal had started right after the independence. Lately there seems to be a shift towards alternative dispute resolution forums to provide access to justice to the large population of this country towards which I now turn my focus. In order to build the argument this paper is divided into five heads. The following section deals with access to justice initiatives and its critiques in India. The second section focuses on the special courts in Tihar and discusses the process of conducting special courts. While third and fourth sections are devoted to critique the construct of these courts as reform measure. The paper concludes by highlighting the pervasive “niptara” attitude of these courts.

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Access to Justice and Legal Reforms in India

Moog (2002) holds that there are two possible ways to improve access to justice: first includes reform of the formal legal system (FLS); while second includes formulation of alternatives to the FLS. And India, according to him, has been fairly active in creating alternatives to the FLS. He writes that, “attempts at state sponsored ADR have ranged from the less formal nyaya panchayats, lok adalats, and court conciliation, to more formal tribunals” (2002: 4). The necessity for such alternatives has always been justified by lamenting huge judicial delay and mounting court arrears (Schackelford 2007; Sinha 2008). Moog (1993) makes a very strong argument regarding the direction of reforms based on the false notions of litigation explosion. He cautions that such wrong assumptions are likely to direct the efforts of policymakers towards “misguided solutions”. This is indicative of the prevalence of a gap between the official discourse on legal and judicial reforms and the practice of such reforms. The existing literature, which talks of the debates around alternatives to FLS as a way to assure the poor access to justice, also throws up contrary pictures of law.

It is believed by various scholars including Galanter, Moog, Marshall and others that the efforts of the legal community is not towards addressing the problems that plague regular court system and remedy them, rather the ‘energies’ are shifted towards creating alternatives. This shift has been called “bypassing strategy” by Galanter and Krishnan, whose work on lok adalats as new arrival on access to justice scenario in India, best exemplifies the gap between official discourse and practice of judicial reforms.

They called lok adalats an illustration of “debased informalism” as they are “commended not by the virtues of the alternative process but by avoidance of the torments of the formal institutional process” (2004: 809). On the basis of their findings on lok adalats they assert that the quality of justice dispensed through the means of lok adalats “falls seriously short of the aspirations of ‘access to justice’ proponents” (2004). Special courts follow the pattern of lok adalats and hence Galanter and Krishnan’s work is important to understand the intricacies of such courts.

 

Special Courts in Tihar

Apart from being the largest prison in South Asia, Tihar is one of the prisons all over the world where reform programmes are run by the state. It claims to be in accordance with the correctional programmes which are going on in other parts of the world. Tihar prison boasts of, among other facilities, holding of special courts for the “confessing under trials”. Prison administration also highlights this as one of the reformation practice as well. The prison population has almost 82 per cent under trials. Till the end of 2011, 130 special courts were held in which 5127 cases of petty offenders were disposed off.  This figure seems to reassert the dichotomy between “access” tojustice and access to “justice”. The total population of Tihar as on 30th April 2009 is 11,738—way beyond its total capacity of 6250. The under trials comprise of more than 80% of the entire population. This population is the primary target of this paper.

Special courts came into being due to the concern of the former Chief Justice of India and former Chairman, National Commission of Human Rights, Hon’ble Justice A.S. Anand. He expressed great concern over the plight of increasing number of under trials languishing in various jails of the country awaiting trial. He wrote letter to all the Chief Justices of High Courts across the country to make arrangements for the establishment of Special Courts in their respective states through Chief Metropolitan Magistrates of Chief Judicial Magistrates of the area in which a district falls.

In the context of his letter, the Delhi High Court defined the purview of “petty offences”.  For special courts, petty offences came to be defined as the “ (i) minor offences where the gravity of the offence is less and the punishment is not going to be very severe; or (ii) the offences in which the prisoners are involved being first offenders may be entitled to benefit of probation; or (iii) may be let off by the courts on payment of fine only; (iv) the maximum sentence do not exceed three years; (v) he has already undergone two months of incarceration.” The document related to special courts highlights the fact that the reform measure of special courts is only for “confessing under trial prisoners” who wish to confess their crime.

On the insistence of Hon’ble Justice A.S. Anand, the High Court of Delhi directed the Chief Metropolitan Magistrate of Delhi to hold special courts in the Tihar Prisons. The first such court in Tihar was held on 13th May 2000. In 2007, a legal aid and counselling centre was opened at Tihar Court Complex. I was told that prior to 20th July 2007, special courts were held in one of the nine central jails. Now, special courts are held at Tihar Court Complex, which is constructed near the prison headquarters. The legal aid cell is also situated in the court complex.

Nowadays, such courts are held on every third Saturday of the month in Tihar. They are organized by the jail authorities in close association with DLSA and Chief Metropolitan Magistrate (CMM) office at Tis Hazari Court, Delhi. The CMM office deputes the Metropolitan Magistrate who is to preside over the hearing of the cases at Tihar and also deputes assistant public prosecutor. The office also assigns a legal aid counsellor to represent the prisoners.

According to the prison administration, the jail authorities play a significant role in conducting such courts as they prepare the list of those prisoners who wish to confess their guilt before the metropolitan magistrate. The list of such prisoners is then submitted to the Law Officer who scrutinizes the list and forwards it to the DCP (Crime) Branch. This Branch is responsible for the verification of the records of the accused applying for the special courts. To ascertain that the accused is not having any previous record of involvement in criminal activities, fingerprints are taken by the hawaldars. For this purpose, bio-metric identification system was also introduced in Tihar in 2007, whereby the photographs and biometric fingerprints of all the inmates are recorded in computers to identify and to separate habitual offenders from the first time offenders. When the names of prisoners are cleared by the fingerprint bureau/crime branch then the report is sent to the office of CMM Tis Hazari, Delhi. This office of CMM then summons the concerned case files from those courts where the trials are pending. Thereafter a Metropolitan Magistrate is deputed to hold the court at Tihar Court Complex. Accordingly other arrangements are made by the jail staff.

According to the untitled document related to special courts, the under trials are produced before a metropolitan magistrate in the presence of a public prosecutor and the legal aid counsellor. The latter serves to ‘represent’ the under trials. It is claimed by the document that the under trials are given the ‘liberty’ to confess their crimes and no pressure is exerted on them to admit their guilt. Further, they are given the ‘liberty’ to retract from their confession if they feel that the sentence proposed against them is excessive. During my fieldwork I was also told by the jail staff that the under trials are made to understand the repercussions of the judicial conviction. Even the legal aid counsellor who represented the prisoners during the course of my fieldwork in Tihar also claimed that he makes the under trials aware about the “opportunity” of availing the facility of special courts and its pros and cons. Alsothe documents related to such courts of the prison authorities claim that the concept of having such courts have been “immensely popular” amongst the under trials in Tihar as large number of these under trials are coming forward to confess their guilt in lieu of early release.

However, reality seems to be different. The manner in which the jail document describes the special courts and its functioning differs remarkably in the actual hearing of such courts. It is important to flag here Usha Ramanathan’s (2007) work on Special Courts in Tihar Prisons. She observes that such court improves the statistics related to rate of conviction at the stake of poor. She writes:

The criminal law was amended in 2005, and plea bargaining has been provided as an option since January 2006. But, pre-dating this amendment by a few years, on orders from the Delhi High Court, under trial prisoners accused of petty crimes’ (which includes being picked up while ‘lurking in the vicinity of the railway station with the intent to commit theft’, bootlegging, being found in the possession of a knife) who had spent two months or more in prison were given the option of  ‘confessing’ to the crime of which they had been accused and being let off in finite time, or professing innocence, and staying in the prison till the case is decided in the ‘regular course’. One who has watched how this procedure works would not be sanguine about validating plea bargaining. But this is true: that such processes are likely to improve the statistics on conviction rate, and to act as a valve to let off unimportant undertrials from an overcrowded prison. (2007: 22)

Thus, she presents her argument against the introduction of ‘formal’ plea bargaining as the ‘pre-dating’ system ceases to consider ‘unimportant undertrials’ legal subject worthy of procedural and substantive law. In the light of her remarks let us analyse special courts as part of official discourse on judicial reforms.

Judicial Reform or “Niptara”?

This is not a court—it is just meant for disposing off cases and increasing the numerical strength of disposed cases.

The above mentioned quote reflects that the special courts are a ‘bypassing strategy” which works for increasing the rate of disposal by the judiciary and hence presents a picture of official efforts in reforming the judicial system. It is also touted as increasing the access to justice to the poor. However, the manner in which the courts function raise doubts regarding the access and justice for the poor. This court is believed to be set up to dispose off the cases—“niptane ke liye”. No evidence is sought, no contestations are done. Moreover, the court is designed for the “confessing prisoners”, but even though confessions are recorded in the official documents, they are hardly heard. Tacit ways are used to create the official category of “confessing prisoners” ready to confess their crime before the metropolitan magistrate. Most of the undertrials are drawn to the web of special courts on the promise of early release. In a way they are “educated” by the jail staff and the visiting legal aid advocates to apply for the courts and they are expected not to be “too educated” so as to reveal the truth behind their confessions. Their voices then are aberration than a norm.

I attended five such courts during 2008-09. Most of the time it is difficult to understand what is happening near the podium as it depends on the loudness of the voice of the presiding metropolitan magistrate and one’s position in the courtroom. I was not assigned any particular seat or chair and most of the time it depended on the convenience of the assistant superintendent who used to provide me the cause list for the day. Files related to the accused are kept in order of the cause-list prepared by the staff of metropolitan magistrate and undertrials are brought to the court in that order. A hawaldar fetches two prisoners at a time holding their hands in his hands. Usually, four to five hawaldars are assigned the task of fetching the prisoners from the cell in Tihar Court Complex. On an average some 30-35 cases are taken up in the court. The MM usually announces the name of the undertrial and asks the jail officials about the time period for which the accused has been in the jail. Jail officials often ask the prisoners about his period of incarceration and tally it with the jail warrant. Legal aid counselor also keeps the copy of the period of incarceration so at times he confirms the time period of the incarceration. If it is over two months and the case is related to theft or bootlegging, then generally the accused is set free on the period undergone. The “chakku” cases, i.e., cases related to section 25/54/59 of arms act are also disposed off in the similar manner.

The proceeding of the Special court is similar to the description by Galanter and Krishnan (2004). They maintain that the criminal lok adalats are “dispute settlement” bodies in name only as they just facilitate signing off on “pre-arranged settlements” agreed upon by the state and the accused. Even in the manner in which the “disposing off” cases take place is also similar. Krishnan had noted in his fieldwork on criminal lok adalat that the accused is escorted by the police officer to the judge’s office. A clerk then provides the judge the file of the accused. This file contains the plea agreement reached between the state and the accused. The judge then “signs off on the matter” and the case is “settled”. This niptara attitude is prevalent to the extent that once the judge was extending the period of incarceration of the undertrials rather than releasing them on the basis of period undergone, then the legal aid counselor who often remains dormant in the court told the judge that the purpose of the court is to dispose off the cases as this has been happening since the time of its inception. Though nobody was sure about the genesis of the provision of the two months period, nevertheless, it was told to the judge that if the prisoner has already spent two months or more in the jail then it is in the power of the court to dispose off the case as and when it comes before it. On hearing this, presiding MM went to his chamber and called the public prosecutor and the legal aid counselor in to reflect on such courts. Later, the appeal of the legal aid counselor was considered laudable by the jail staff who later commended this effort of his over the lunch.

In special courts also it depends on the MM whether to ascertain from the undertrials about the “voluntary” nature of their applications for the confession of crime or not. Out of five courts which I attended only one MM took time to ask most of the undertrials about their cases and the charges for which they were inside the jail. Otherwise the court proceedings look more like mere signing off the metropolitan magistrate who usually consult public prosecutor, for the day, to decide the quantum of punishment. The bar of two months is upheld for applying to the special courts, and hence, most of the prisoners are freed on the basis of period undergone. One of the assistant public prosecutors told me that these courts work for the “niptara” of such cases. This niptara is to help the jail authorities to decongest the jails and to boast about reforms in administrative and judicial circles by showing the greater number of disposal by the means of special courts.

The judiciary also applauds the ‘success’ of these courts as a means to not only decongest overcrowded jails but also decreasing the case loads of the regular courts and thereby easing some of the overflowing dockets. It indicates towards the issues related to the official discourse of reforms and bureaucratic practices. Target setting is one of the important practices that takes place in Tihar on regular basis. I found out during my fieldwork that the legal aid counselor often consulted assistant superintendent responsible for holding special courts for setting monthly target of number of cases to be sent for special courts.Thus, the numerical narratives in the case of special courts can be viewed as creating a picture of successful reform measure to decongest regular courts and to impart speedy justice.

Numerical Narratives: “Niptara” as a technique

The “niptara” attitude seems to have seeped in the very system of the special courts as they have come to be seen as a mere mechanism of disposing off cases. The substantive aspect of law does not seem to find any place in this scheme then. The success of these courts is rated with the number of cases they settle. The undertrials whose applications are sent for special courts invariably hail from the poor socio-economic strata of our society. Many of them are migrants from Uttar Pradesh and Bihar and they do not have anyone known in Delhi for furnishing of the bails. Amidst this scenario it seems that poor are being targeted for the so-called judicial reforms and the “effective and efficient” performance of judiciary is achieved at the cost of criminalizing the poor and indigent who do not have adequate resources to represent their case.

Often cases which get redirected to the concerned courts become the matter of disappointment for both the jail staff and the legal aid advocate—as their efforts are always geared towards achieving the higher number possible. In a special court sitting in October 2008, out of 37 cases, 5 cases were again sent to the concerned courts. The MM happened to ask these undertrials the crime for which they were incarcerated. Out of these five cases one was related to Arms Act. The accused was found in possession of a knife. The presiding MM asked him if he admits his crime or not. The accused replied in affirmative. On hearing the accused the MM asked him, “galati kis cheez ki maan rahe ho?”; What have you done? What is your crime? The accused could not reply about the crime for which he was ready to confess to avail the “facility” of special court. His case was then sent to the concerned court. In yet another case the accused pick pocket replied that if the MM was ready to release him, he was ready to admit his crime. Another accused told the MM that it was out of “majboori” (compulsion) that he had agreed to confess his crime. The officials of jail and the legal aid advocate react sharply towards such prisoners. They held that it was due to their own “bewakoofi” (foolishness) that they could not avail the “golden opportunity” provided to them. They believe such undertrials are not only troublesome for their own self but also spell danger for these officials. According to them these undertrials are foolish and incapable of understanding their own interest.  They spend a lot of their energy in convincing the undertrials about the benefits of availing the route of special courts yet, as one of the assistant superintendent had put it, “they commit blunders before the judge by not admitting their crimes and end up reducing the output of the court.” These prisoners are considered “jyada padha likha” sarcastically. This point to the way the speech acts are performed inside the courtroom and the result that such acts produce. Precisely due to this reason it is desired by the staff that the interaction between the presiding MM and prisoners be minimal and because of this it is not hard to find them reiterating and thus, asserting that, “these courts are to dispose off cases and not for hearing them—what good it would serve, rather it is going to take longer time to dispose off if it does so.” The entire interaction becomes important and because of this, it is my contention that the jail staff try to control the interaction in the courtroom.

Conclusion

By way of conclusion, what Galanter and Krishnan (2002; 2004) point out regarding the employment of “bypassing strategy” and induction of “debased informalism” seem to be the premise of the reformation agenda of the district judiciary in Delhi as well—under which the efforts are directed towards creating such alternative sites of disposal of cases rather than reforming the regular courts for effective and efficient dispensation of justice. However, the concept of debased informalism is not able to provide sufficient explanation for the techniques of power employed in these courts.  The irony of such special courts in Delhi is that they are situated in the Legal Aid and Counseling Centre of Delhi Legal Services Authority (DLSA) whose motto is to provide “access to justice for all”.  However, what is happening is not the dispensation of just and speedy justice rather the way speech and silence is structured in these hearings suggest the following. The system of informal plea bargaining seems to have established its roots firmly in such courts wherein trade off takes place between the prisoners, jailors and the state. This trade off is popularized as providing access to justice to the prisoners through the means of special courts in official discourse. However what is happening in reality is that the poor must admit guilt for an early release. It is indeed a difficult question whether the discourse of “access” of justice can capture the principles that underlay substantive procedural law, from a constitutional viewpoint. The place these courts occupy in the subjectivity of these prisoners remains a future project. However, the methods adopted by the niptara courts demonstrate how prisoners are converted into numerical targets, and life histories are replaced by numerical narratives of the state. The relation between poverty and criminalization is well known—what may be theft in law may be survival in life and what may be confession in law, may be freedom in life—in both cases, stigma of criminalization overdetermines the poor. The production of docile and productive body in the prison is supplemented by the production of a confessing body in order to to regulate prison populations as an index of efficacy of reform discourses which legitimize the state. Sadly, it legalises the criminalization of the poor as well.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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[1]Anu Choudhury, Researcher, Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi.

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