1 Introduction needs to be addresse What d

3, 85, 135 prison population as PER NCRB PRISON STATISTICS 2012 as on 31 December 2012

2, 54, 857 (66. 2%) Number of Undertrials 1, 27, 789 (33. 2%) Number of Convicts

2 Early & Effective Representation

Undertrial & the Criminal Justice System Undertrial in Prison Po ary ici lice Jud Ov ers igh ion t Pr ba o Legal Aid t

Horrors of Unnecessary Detention

My family knew nothing about my arrest. The police beat me up and produced me in court after 4 days. No legal and medical aid was offered to me. The Magistrate did not even look at me and sent me to judicial custody. Police custody & first production

Question 1: What happens when a person is picked up by police on mere suspicion? (Video Clip from Crime Patrol)

WEAPONS OF HUMAN RIGHTS LAWYERING Joginder Kumar v State of UP [(1994) 4 SCC 260] Right to Freedom from Arbitrary Arrest and Detention - The power to arrest without a warrant should be exercised only after a reasonable satisfaction is reached, after some investigation , as to the genuineness and bona fides of a complaint and a reasonable belief as to both the person’s complicity as well as the need to effect arrest. D. K. Basu v State of West Bengal [AIR 1997 SC 610] Guidelines on Arrest- Detailed guidelines for police before, during and after arrest were laid down. Chiguluri Krishna Rao, President, Bezawada Bar Association v Station House Officer and Ors. [2006 (1) ALD Cri 90, 2006 (1) ALT 259] Right to be Brought Promptly Before a Magistrate - Arrested persons must be promptly brought before a judge. He cannot be held in custody beyond statutory time limits. Detention beyond this is illegal.

Question 2: What happens when an arrested person has no lawyer at the time of interrogation, arrest and first production? (Video Clip from the movie Shaitan)

WEAPONS OF HUMAN RIGHTS LAWYERING State of M. P. v Shobharam [AIR 1966 SC 1910] Right of Arrestee to consult his lawyer – Under Art. 22(1), any person who is arrested has the right to consult his lawyer and to be defended by him, so that he may guard himself against the accusation for which he is arrested. Khatri & Ors. v State of Bihar [(1981) 1 SCC 627] Right to free legal aid - Accused to be informed by Court of right to free legal aid and is entitled to compensation for violation. Sheela Barse v State of Maharashtra [(1983) 2 SCC 96] Right to legal assistance, family informed & Judicial oversight - Police will immediately give an intimation of arrest to the nearest Legal Aid Committee and such Legal Aid Committee will take immediate steps for providing legal assistance to the arrested person at State cost. Police should get in touch with relative or friend and inform him about the arrest. Preferably a lady Judge, shall make surprise visits to police lock ups in the city periodically with a view to providing the arrested persons an opportunity to air their grievances and ascertaining the conditions in the police lock ups and the provisions of law are being observed.

WEAPONS OF HUMAN RIGHTS LAWYERING Md. Ajmal Md. Amir Kasab @ Abu Mujahid vs State Of Maharashtra (Criminal appeal nos. 1899 -1900 of 2011) “ 484. We, therefore, have no hesitation in holding that the right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate. …………We, accordingly, direct all the magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings. ”

WEAPONS OF HUMAN RIGHTS LAWYERING Nandini Satpathy v P. L. Dani [AIR 1978 SC 1075] Right to Remain Silent - No one can be compelled to be a witness against oneself. Nor can the police or prosecution force a confession of guilt from the accused, as that would be self-incriminatory. Smt. Selvi & Ors Vs. Karnataka [(2010) 7 SCC 263] Right against self-incrimination - Article 20(3) not only a trial right but its protection extends to the stage of investigation also. Compulsory involuntary administration of Narcoanalysis, polygraph examination and Brain Electrical Activation Profile (BEAP) violates the `right against selfincrimination' enumerated in Article 20(3) of the Constitution as the subject does not exercise conscious control over the responses during the administration of the test.

PREVENTING UNNECESSARY ARREST & DETENTION… SYSTEMEIC USE OF REMEDIES • Better police investigation before arrest • Access to Legal Aid Counsel • Effective implementation of station bail (S. 436) • Effective implementation of S. 41, 41 A, 41 B, 41 C & 41 D • Judicial Oversight over Police Stations • Internal Oversight by Senior Police Officials • Police Station Camera Surveillance • Strict action against duty-holders in case of procedural violations

COURT PROCEEDINGS & JUDICIAL CUSTODY

The court has not appointed a legal aid lawyer for me though I am poor…how do I get bail? Why has my chargesheet not been filed yet? 60 days are over & you still want to keep me? Remanding me to 14 days Judicial Custody AGAIN? ? My lawyer has not come to meet me in prison for 10 months now I am from another state. I have no one to provide surety even if Court has granted me bail I was in court lock up… The magistrate did not ask for my physical production I’ve completed half term in prison as undertrial & still here COURT PROCEEDINGS & JUDICIAL CUSTODY

Question 1: What happens when an accused is not represented during hearing? (Video Clip from the movie Justice for All)

WEAPONS OF HUMAN RIGHTS LAWYERING Ranjan Dwivedi v Union of India [A. I. R. 1983 S. C. 624] Right to a Lawyer - No accused person must go unrepresented in court. All persons are entitled to call for the assistance of a lawyer of choice to protect and establish their rights and to defend them at all stages of trial proceedings. Suk Das v Union Territory of Arunachal Pradesh [A. I. R. 1986 S. C. 991] No lawyer, trial gets vitiated – If a person remained unrepresented by a lawyer and the trial ultimately resulted in his conviction is a violation of the fundamental right under Article 21 and the trial must accordingly be held to be vitiated on account of a fatal constitutional infirmity, and the conviction and sentence recorded against the appellant must be set aside.

Question 2: Can a lawyer safeguard the rights of his/her client without adequate legal knowledge and skills? (Video Clip of movie Virasat & KBC Ad)

WEAPONS OF HUMAN RIGHTS LAWYERING Bal Bahadur Vs. Customs Officer [Crl. A. No. 12/2009 – Delhi HC] Right to quality legal aid - Separate panel of trial court lawyers comprising senior lawyers of not less than 10 years or more experience and associate lawyers of not less than five years' to defend the indigent accused facing trial for commission of offences punishable with sentence of seven years and more. CHRI Vs. State of West Bengal [W. P. 56 of 2013 – Calcutta HC] Right to effective representation at remand - A panel of Legal Aid Lawyers should be present in each Court hearing remand applications , so as to ensure that arrestees who cannot afford a defence lawyer is provided with a lawyer at State’s cost right from the date of first production.

Question 3: What happens when an accused is not physically produced before the Magistrate repeatedly? (Video Clip from CHRI documentary)

WEAPONS OF HUMAN RIGHTS LAWYERING Elumalai v. State of Tamil Nadu [1983 --LW(Crl)121 - High Court of Madras] Duty of Magistrate - Under no circumstance can a Magistrate order the detention of any person in custody or extend detention without the production of the accused before him which is in violation of S. 167 (2) of the Code, whatever may be the reason stated by the authorities concerned for the non-production of the accused before the Court, such as the non-availability of police escorts. M. A. Dharman, Son of Appukuttan v. State of Andhra Pradesh [1991 (1) ALT 315 - High Court of Andhra Pradesh] Right to physical production before the Magistrate - Under Section 167 (2) (b) of the Code of Criminal Procedure, production of the accused person before the Magistrate both at the time of seeking his remand extension of the remand, is compulsory.

Question 4: Can an undertrial ever be released on bail if he doesn’t have surety? (Video Clip of Mother-son story)

WEAPONS OF HUMAN RIGHTS LAWYERING State of Rajasthan v Balchand Motiram [(1977) 4 SCC 308] Bail not Jail - Depriving a person of liberty is a last resort. Bail not jail is the rule. Bail must be granted unless there are reasonable grounds to believe that the suspect would suborn the process of law or flee from justice. Moti Ram v. State of M. P. [(1978) 4 SCC 47] Guidelines in granting bail - An accused person should not be required to produce a surety from the same district especially when he is a native of some other place. Bail covers release on one’s own bond, with or without sureties. Bail should be given liberally to poor people simply on a personal bond, if reasonable conditions are satisfied. The bail amount should be fixed keeping in mind the financial condition of the accused. When dealing with cases of persons belonging to the weak categories in monetary terms - indigent young persons, infirm individuals or women courts should be liberal in releasing them on their own recognizance.

Question 5: What happens to the family of an undertrial when trial goes on for a long time? (Video Clip from CHRI documentary)

WEAPONS OF HUMAN RIGHTS LAWYERING Hussainara Khatoon & Ors. V. Home Secretary, Bihar, Patna [AIR 1979 SC 1360] Right to Speedy Trial - A reasonably expeditious trial is an integral and essential part of the fundamental right to life and liberty. Abdul Rehman Antulay v R. S. Nayak [1992 (1) SCC 225] Right to a Speedy Trial - Every accused is entitled to a trial without undue delay. Procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless it ensures speedy trial for determination of guilt of such person.

3 Monitoring Prisons

MONITORING PRISONS

My case must have been reviewed by the PRC since I am a first time petty offender and have been in jail for 14 months We are foreign nationals. Our sentence is done. Why are we still here? Will the Judge ever visit us in the prison? I am Late Balu Ram. I spent 36 years in prison but my trial could not be completed. My fault: I was mentally ill 5 new prisoners came to the barrack… there is no place to even lie down properly How do I eat food here? The plates are not cleaned MONITORING PRISONS

JUDICIAL OVERSIGHT Sunil Batra II Vs. Delhi Administration [1980 AIR 1579] Duty of Judges and Magistrates to visit prisons - To make prisoners' rights in correctional institutions viable, we direct the District Magistrate concerned to inspect the jails in his district once every week, receive complaints from individual prisoners and enquire into them immediately. Common Cause Vs Union of India & Others [Writ Petition (C) No. 1128 of 1986] Undertrial Review Committee - The District Level Review Committees for Under Trial prisoners should meet, without fail, at least once in every 3 months and review the cases of all prisoners who are in Judicial Custody for periods of six months or more. Supreme Court Legal Aid Committee Vs Union of India [1994 SCC (6) 731] Establishment of Review Committees – The Apex court recommended State Governments to set up Review Committees headed by judicial officers.

PRISON VISITING SYSTEM Sunil Batra (II) vs Delhi Administration (1980 AIR 1579) “The board, which includes judicial officers and people from varied social backgrounds and is vested with ‘Visitorial powers’, could be an instant administrative grievance redressal mechanism to protect the rights of prisoners. ” Rakesh Kaushik Vs. BL VIG Superintendent Central Jail, New Delhi (AIR 1981 SC 1767) “…part of their function was to acquaint themselves with the condition of tension, vice and violence and prisoners’ grievances. ” Ranchod Vs. State of M. P. (1986 16 Reports M. P. 147) “The non-official visitors to the jail, appointed by the State Government, had they justified their appointment by getting themselves acquainted with the prisoners’ problems and making efforts for amelioration of their lot, within the framework of the Jail Manual itself; if all this had been going on smoothly, as is expected and sought to be, possibly there was no need for… this letter petition. ”

Indian Justice System – Remedy or Malady? Rea. LITIES ON THE GROUND AND KEY challenges IN prison REFORMS

Overcrowding Poor implementation of statutory non-custodial provisions and MHA advisories Poor Accountability to International Standards for Treatment of Prisoners We & Them Divide Low civil society participation in prisons Inadequate protection mechanisms for the vulnerable and weak Constraints – human and financial resources Low awareness Post release follow-up of prisoners is very negligible

SOLUTIONS & ROLE OF A HUMAN RIGHTS LAWYER Decongest prisons üOppose Unnecessary Remand üImplement liberal bail provisions and release on personal bond provisions üPrevent juveniles and mentally ill prisoners from being in jails üImplement alternate sentencing measures - Community sentencing/release on supervision üImplement UNODC’s international guidelines on legal aid üImprove mechanisms of reintegration of prisoner and society – parole, furlough, probation Strengthen Prison Monitoring q. Use & Advocate for Effective Undertrial Review Mechanisms to review and recommend release in petty and pending cases q. Advocate for better judicial oversight over prisons q. Advocate with NHRC and SHRC for periodic jail visits/surprise visits q. Use & Advocate for Prison Visiting System to increase presence of civil society in jails, and self-nomination q. Use statutory provisions of the Jail Manual on Internal & External Oversight

SOLUTIONS & ROLE OF A HUMAN RIGHTS LAWYER Improve Court/Pre-trial Practices §Effective implementation of Section 436 & 436 A of the Cr. PC; Section 167; Amendments to Section 41 §Help implement the mandate of NALSA and SLSA for early and effective representation §Ensure ethical and effective court production §Improve lawyer-client relationship Human rights perspective v. See prisoners as ‘persons’, persons who have all rights except those lost by confinement v. Improve mechanisms of reintegration of prisoner and society v. Connect and network with prisoners’ families v. Sensitize and improve capacities of officials in the CJS

Thank you! Prison Reforms Programme Behind Bars Not Beyond Justice Commonwealth Human Rights Initiative