Niptara Courts: Critique of Official Discourse on Access to Justice

Anu Choudhury[1]                                                                                                                     


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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