India

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INDIAN CRIMINAL DEFENSE MANUAL

  1. The Role And Responsibility of a Legal Aid Lawyer
  2. Rights of the Accused and Exceptional Circumstances
  3. Client Interview
  4. Other Pretrial Matters
  5. Theory of the Case
  6. Various Defense Strategies
  7. Questioning the Witness
  8. Plea Bargaining/Guilty Plea
  9. Evidence
  10. Arguments

CODES

LEGAL RESOURCES

LEGAL TRAINING RESOURCE CENTER

Background

India has one of the world's largest populations of pre-trial detainees with 249,796 people in overcrowded and unsanitary prisons. While in police custody, these Indian citizens are often subjected to beatings, sleep deprivation, and shock treatments - all in violation of their fundamental constitutional rights. Subjected to inhuman and degrading treatment, they are an example of human rights abuses on a colossal scale. Four people die in police or judicial custody every day from these abuses.

Many of these deaths could be avoided if cases were swiftly resolved. However, each year more cases are filed in Indian courts than can ever be disposed of, creating a huge bottleneck in the criminal justice system. There are currently 26,752,193 pending cases in Indian courts and in some jurisdictions case loads are so high that it would take a thousand years to clear court dockets. Because of this backlog, detainees who cannot make bail are sometimes kept in pretrial detention longer than the maximum sentence they would have received if convicted. In one case, a man was held in pretrial detention for 54 years even though the maximum sentence for his crime was only 10 years. During these periods of pre-trial detention, arrestees are at the greatest risk of human rights abuses as victims have reported that the longer the period of detention, the more intense the violence against them becomes.

These abuses are made worse and worse by the continuing deterioration of the Indian Police, one of the most ill-equipped police departments in the world. For every 1,037 Indian residents there is only one police officer. (Asian average: 558, global average: 333). Understaffed, under-skilled and under-resourced, the police in many Indian states work long hours under filthy labor conditions. Junior officers face intense pressure from supervisors to solve cases quickly and efficiently. As a result, bribery, brutal torture, murders, illegal arrests and other human rights abuses have become the norm, rather than the exception.

Recently, India has demonstrated an increased commitment to rule of law and citizens’ legal rights. Because of police abuses during interrogation, Article 22 of the Indian Constitution was added to prevent police from detaining citizens for longer than 24 hours without a special order from a magistrate. Though domestic law grants this fundamental legal right, there remains a tremendous gulf between the actual law and its implementation. Police officers regularly detain suspects for several days, post-dating arrest documents 24-hours before producing the defendant before the magistrate. Similarly, pretrial detainees are routinely denied due process rights taken for granted in the western world: notice of charges and an opportunity to contact family or lawyers. In many cases these prisoners – poor and marginally literate – are completely unaware they have any legal rights at all, further emboldening police officers.

NGOs have been successful in lobbying Indian authorities to criminalize torture, organizing public awareness campaigns on the issue of torture and aiding the rehabilitation of torture victims. However, systematic police denial, obstruction, an absence of records and a lack of accountability continues to plague the system.

Despite the fact that India has a limited legal aid system, the vast majority of pre-trial detainees never receive any legal representation, making this right illusory at best. India's current legal aid system operates primarily in urban areas, and due to caste segregation many Indians do not receive access to legal aid at all. Each of India's 28 states operates its own Legal Services Authority, resulting in an uncoordinated approach to India's legal aid problems.

Type of System

A former British colony, India has a criminal justice system heavily influenced by the English common law system. There are, however, significant differences. For instance, India banned the use of jury trials in 1960.

Sources of Defendants' Rights

Defendants' rights are protected by the Constitution of India, the Criminal Procedure Code of 1973 and the Indian Evidence Act of 1872 which governs a suspects rights prior to trial. In addition, defendants' rights are established by case law by regional and national courts. By law, Indian defendants retain a significant number of rights including the right to counsel[1], the right to silence [2], the right to a fair trial[3], the right to confront witnesses[4] and the right to a speedy trial[5]

Defendants' Rights


Pre-Trial

The arrest of a defendant must be made if a reasonable complaint has been made or credible information received or a reasonable suspicion exists that an individual committed a crime[6]. Police may conduct a search upon probable cause and the issuance of a search warrant.

A defendant may be detained pending trial. For bailable offenses a Magistrate must notify the accused of his right to bail and prescribe the amount of bail. The defendant has the right to identify an individual to be informed of his or her arrest.[7]. An arrestee has the right to demand an "Inspection Memo" for documenting any injuries incurred during or after arrest and has the right to a medical examination every 48 hours.

A defendant has the right to meet a lawyer during interrogation though not throughout the entire duration of the interrogation.

Defendants in police custody must be produced before a Magistrate within 24 hours of arrest. [8]

The right to counsel applies to all custodial interrogations as well as critical stages of the proceedings including post-indictment interrogations, arraignments, gulity pleas and trials.[9]

Trial

A defendant has the right to a fair trial in open court [10] as well as the right to confront witnesses [11]. Jury trials were abandoned in 1960 and all trials occur with the judge sitting as finder of both law and fact.

Confessions to police are inadmissible as evidence. Confessions may be admissible if made to a Magistrate and only if the Magistrate examines the circumstances of the confession for possible police coercion or intimidation[12]

Post-Conviction

The Constitution of India prohibits an individual from being prosecuted and punished form the same offence more than once.[13] The Criminal Procedure Code states that every individual convicted in High Court may appeal to the Supreme Court. Any person convicted on a trial held by a Sessions Judge or Additional Sessions Judge or a trial in any other court in which the sentence of imprisonment is more than seven years may appeal to the High Court. The defendant must show that a miscarriage of justice jeapardized the fundamental fairness of the trial in order to secure reversal.[14]

The Indian Supreme Court may enforce Constitution rights by Habeas corpus, mandamus, prohibition, quo warranto and certiorari [15]


See Criminal Justice Systems Around the World

QUICK FACTS

  • There are 26,752,193 pending cases in Indian courts. In some jurisdictions case loads are so high that it would take a thousand years to clear court dockets.

References

  1. Constitution of India, Art. 22(1)
  2. Constitution of India, Art. 20(3)
  3. Constitution of India, Art. 14
  4. India Evidence Act, Section 138
  5. Hussainara Khatoon & Ors. V. Home Secretary, Bihar, Patna, (1980) I SCC 98
  6. Criminal Procedure Code, Sect. 41
  7. Criminal Procedure Code, Section 50A
  8. Constitution of India, Article 22(2)
  9. State of M.P. v. Shobharam, AIR 1966 SC 1910: (1966) Cri LJ 1521
  10. Criminal Procedure Code Sec. 327
  11. Indian Evidence Act Sec. 138
  12. Criminal Procedure Code, Sect. 164.
  13. Constitution of India, Art. 20(2).
  14. For a full list of appealable issues see Criminal Procedure Code, 1973, Sections 460-466.
  15. Constitution of India, Art. 32(2)