First Remand Carried Out Usually Without Legal Representation, Magistrates Rarelly Interact With Accused : P39A Report On Delhi Courts
Project 39A, National Law University, Delhi released its report 'Magistrates and Constitutional Protections: An ethnographic study of first production and remand in Delhi courts', co-authored by Jinee Lokaneeta (Professor in Political Science and International Relations, Drew University and Visiting Professor, National Law University, Delhi) and Zeba Sikora (Senior Associate, Project 39A), on...
Project 39A, National Law University, Delhi released its report 'Magistrates and Constitutional Protections: An ethnographic study of first production and remand in Delhi courts', co-authored by Jinee Lokaneeta (Professor in Political Science and International Relations, Drew University and Visiting Professor, National Law University, Delhi) and Zeba Sikora (Senior Associate, Project 39A), on 3rd May 2024.
The report launch included a presentation from the authors and members of the research team. This was followed by a panel discussion with esteemed speakers Dr. S. Muralidhar (Senior Advocate and Former Chief Justice, High Court of Orissa), Dr. Aditi Chaudhary (DHJS and Director-Academics, Delhi Judicial Academy), and Nitya Ramakrishnan (Senior Advocate). The discussion was moderated by Anup Surendranath (Executive Director, Project 39A and Professor of Law, National Law University Delhi).
The authors, Jinee Lokaneeta and Zeba Sikora, in their presentation emphasised how this first of its kind report is based on courtroom observations in magistrate courts across six district court complexes in Delhi, over a period of three months. By focusing on the everyday functioning of these courts, the study notes that most magistrates are unable to fully realise the constitutional and statutory protections at stake at first production and remand, and points to the structural barriers impacting their performance at this stage. The report invites further research and conversation on how to ensure that these rights are substantively realised in everyday practice. Researchers Mary Abraham and Paresh Hate shared the strengths and challenges of field research in magistrate courts in Delhi.
Dr. Muralidhar congratulated the team for the immersive nature of the report and the careful court observations on the actual working of Article 22. He mentioned the long history of constitutional protections for those in custody, but also noted its inability to transform police behaviour, thereby the need for magistrates to play a crucial role at this stage to ensure protections. He observed that the report holds a mirror not just to the judges in the district judiciary, but to lawyers, legal aid counsel and the police. He suggested it be made part of the compulsory reading material at judicial and police academies. He pointed to the need to translate this report in multiple languages, and for this study to be replicated in other states as well.
Dr. Aditi Choudhary thanked the authors and research team for the detailed report, which she felt would help as a feedback to the working of magistrate courts. She shared her experience of the training process of magistrates; insights about the legal, procedural and institutional realities of magistrates including their heavy workload; and advocated for a proactive role of magistrates at the remand stage.
Nitya Ramakrishnan said that it was the first study she knew of that focused on Magistrates and was very welcome. The actual observations were illuminating. The jurisprudence is clear, that a Magistrate had limited but clear power to check unnecessary detention and abuse in custody, which was seldom exercised. More than further declarations of law, a dedicated remand process, public scrutiny and an assessment of this role in the service record may be useful steps. She also suggested that an arrest memo be served on the next friend at the time of arrest and they be notified in advance of the court and time of first production.
Focus of the Report
The report highlights the constitutional significance of the role of the magistrate at first production and remand, an important step in the pretrial process. According to Article 22(2) of the Constitution, every arrested person must be produced before a magistrate within 24 hours of arrest. The magistrate has to ensure the life, liberty, dignity and safety of the accused - constitutionally protected under Article 21 - at this first production, and during subsequent remand proceedings when directing further detention in police or judicial custody. Even though magistrates – at the very bottom of the judicial hierarchy – are required to play this crucial role post arrest, this has not received much focus in jurisprudence and in scholarship.
Highlights from the Report
Ethnographic Approach
The researchers adopted an ethnographic approach that involved courtroom observations over a period of three months, across six district court complexes in Delhi. This approach allowed the team of eight researchers to qualitatively consider the functioning of magistrate courts at this stage, beyond questions of compliance with procedural requirements. Researchers focused on the role of multiple court actors, and the manner in which courtroom dynamics and social hierarchies mediated the experience of the accused in the courtroom.
Arrest Memo and Medico Legal Certificate (MLC)
Court observations attested to the prominence of the Arrest Memo and MLC at first production and remand. These safeguards have been recognised through jurisprudence and in statute as critical for preventing illegal detention and custodial violence during this vulnerable phase in custody. Most magistrates ensured that the Arrest Memo and MLC were part of the file during production, and that the required details had been filled in.
Engagement of Magistrates
● The engagement and intervention of magistrates varied across courts and cases, and was dependent on their individual discretion.
● While most magistrates focused on ensuring that the paperwork was in order, they rarely interacted with the accused to confirm their experience with the details provided in the documents; secured their right to counsel; or ensured their continued safety and well-being in custody.
● Often when violations were noticed, they were ignored or corrected in the paperwork, without focus on consequences or its impact on the rights of the accused.
● At first production, standard explanations for injuries – accident or public beating – were usually accepted without further inquiry despite custodial/police violence being a common occurrence.
Separation between police and accused in productions from police custody
When an accused is produced before the magistrate from police custody, they are expected to raise potential concerns about custodial violence in the presence of the police officers investigating their case, with the possibility that they might be sent back to the same police station for further detention. There is no practice which ensures the separation between the police and the accused at this stage in order to create an environment where the accused might feel safe to put forth their experience.
Role of Remand Lawyers:
Despite 'remand lawyers' (a special category of legal aid lawyers) being especially appointed to ensure legal representation at the pretrial stage, they were noticed to be usually absent from court. First productions and remand were usually carried out in the absence of legal representation, often in magistrates' chambers without any public gaze on the proceedings.
Workload of Magistrates:
Structurally, first production and remand proceedings do not appear to be accorded proper time in the daily workload of the magistrate. In the already burdened work day of the magistrate, first production and remand matters are heard at random, in parallel to or in between other proceedings in the court; thereby contributing to a reduced significance of production matters.
Invisibilisation in Cause list:
Production matters are not even mentioned in the cause list, the most publicly visible document of the schedule of a magistrate court. While these are not the only category of matters excluded from the cause list, its exclusion appears to undermine the substantive importance of this procedural requirement.
Consequences of violation:
While there are constitutional and statutory protections to be followed on arrest and in custody, there is an absence of clear guidance (in jurisprudence and in statutes) about the tools available for magistrates to respond to violation of these safeguards at first production and remand.