Asian Human Rights Commission

(Ed. note: The statement below was circulated on Jan. 27, 2006.)

Serious irregularities in judicial proceedings at the Additional Chief Judicial Magistrate Court in Barrackpore in the state of West Bengal speak to how India's lower judiciary is being manipulated by the police.

According to Manabadhikar Suraksha Mancha (Masum), a human rights group based in greater Calcutta, Vijay Kumar Jaiswal was violently and illegally arrested in the middle of the night on Dec. 14, 2005. The police apparently detained Vijay to put pressure on his family to produce his brother, the suspect in a theft case. However, the family has maintained that they have not known the whereabouts of the brother for several years. The police also looted the house of electrical items reportedly left by other people for Vijay to repair. When Vijay was brought to the police cells, he found a co-accused in the case, 15-year-old Md. Siraj. He heard from Siraj that he had been kept in the cells for nine days during which time he was not fed. They were kept in custody for a further four days before being brought to court.

It appears that the judicial orders in Vijay's case were drafted by the police constables who are stationed at the General Records Office—an undesirable posting that is frequently given to constables who have been disciplined. For instance, in a recent case where a human rights defender was bullied at a local police station, the inspector involved in intimidating the human rights activist was transferred to a court records office as punishment. Yet officers such as this, who have little schooling and no legal role to play in writing documents for a judge to sign, are preparing orders that are issued by the magistrate with a wave of his pen. At the same time, the magistrate fails to look through the other documents that have been prepared in advance at the police station with the intent to conceal and obscure failures in correct procedure and criminal acts committed by the police.

The consequence is a farce of record-keeping. In Vijay's case, the documents show two different dates of arrest, do not record the period of illegal detention or full details of arrest, fail to show seized items and indicate that the court order was drafted by a police officer and issued before the accused was actually brought to the court. There is a four-day discrepancy in dates of arrest between the arrest memo and the forwarding letter. The documents thereby keep the court ignorant of the fact that the two detainees were held illegally in custody for more than 24 hours before they were brought before it. The first information report (FIR) is likewise silent about the place and time of arrest: mandatory and absolute minimum requirements in record-keeping. Moreover, and most significantly, the order was drafted and issued before the detainees were ever in the court, evidently by a police constable in the records office, not the magistrate.

This is indicative of how far India's judiciary has fallen: police are writing "judicial" orders that heedless judges sign without a glance or thought. In few other countries where the judiciary faces severe criticism over its performance has the situation become as bad as that in India.

As early as 1996, the Supreme Court of India laid down a procedure for arrest and detention of a suspect. Law enforcement agencies are obliged to follow this procedure, which has since been incorporated into the Criminal Procedure Code through an amendment in 2005. This procedure requires that magistrates be satisfied that police have followed the procedure fully and have documented all steps in the arrest and detention of a suspect. These requirements include informing a detainee and a person of his choice in writing why the person has been arrested, where the person will be held and when the person will be produced in court. It also requires that the detained person be brought before the magistrate to verify that the procedure has been followed and that the arrestee does not have any complaints. If the detainee has complaints, the judge must record them. Yet these procedures are being made a mockery through the management of lower judicial records by the police and the careless attitude of the court to its responsibilities.

The Asian Human Rights Commission (AHRC) is aware that such administrative mismanagement and blatant denial of arrestees' rights is taking place not only in the Barrackpore Additional Chief Judicial Magistrate Court but in many other magistrate courts in West Bengal as well. Among the most commonly reported breaches of procedure that amounts to a grave violation of human rights is that magistrates are extending periods of detention and signing papers casually and carelessly without actually seeing the detainees.

Why have lawyers and senior judges in West Bengal not raised a furore about these malpractices? In the past, the higher judiciary provided a compassionate hearing and reacted somewhat justly and promptly to such cases, especially where there were serious complaints affecting the dispensation of justice. Yet those days seem far gone in West Bengal where there is now virtually no avenue left for a person to complain about the wrongdoing of a judicial officer. If this situation is allowed to continue, it will bring shame, not only to the judiciary of that state, but to the whole of India. Worse still, it will precipitate a complete collapse in the rule of law.

The conduct of India's lower judiciary, and particularly in West Bengal, must be brought under far closer scrutiny than what exists at present. The AHRC calls upon concerned lawyers and senior judicial officers to take the lead in directly and fearlessly recognising the gravity of the current situation and to take concerted and determined steps to demand that the rights of ordinary detainees, like Vijay and Siraj, no longer be trampled upon by errant police constables and indifferent judges. Above all, the practice of police writing "judicial" orders must be stopped without delay. On this point, the higher judiciary is above all others beholden to act and bolster the faltering confidence of ordinary Indians in their country's justice system.