New Delhi: The Supreme Court has declared that NewsClick founder-editor, Prabir Purkayastha’s arrest and remand were both illegal, yet he had to spend six months in jail. This has raised a serious set of questions over what the conduct and decisions of the lower judiciary in the capital has been so far.An ethnographic study of magistrate courts of Delhi has been conducted by Project 39A, situated at the National Law University (NLU) in Delhi, which is based on courtroom observations in magistrate courts across six district courts in Delhi, over a period of three months.The report “highlights the constitutional significance of the role of judicial magistrates at first production and remand, and draws attention to the everyday functioning of these courts and the structural barriers impacting their performance at this stage.”Project 39A is a group housed at NLU, “inspired by Article 39-A of the Indian Constitution, a provision that furthers the intertwined values of equal justice and equal opportunity by removing economic and social barriers.” This study has focussed on aspects of the criminal legal process that have received inadequate focus, but are critical for ensuring the protection of life, liberty, safety, and dignity of an accused on arrest and during further detention, say the report’s authors.Jinee Lokaneeta, Visiting Professor, National Law University and Professor in Political Science and International Relations, Drew University, New Jersey, as well as Zeba Sikora, Senior Associate, Project 39A, National Law University are advisors and report authors with a team of eight researchers.The emphasis in the study has been “on the pretrial phase” of the criminal legal process, particularly during first production and remand, “and the constitutional values and substantive protections at stake” as these proceedings go on.Here are its main findings:This ethnographic study of magistrate courts of Delhi draws attention to two aspects of the criminal legal process that have received inadequatefocus, but are critical for ensuring the protection of life, liberty, safety and dignity of an accused on arrest and during further detention.Everyday functioning of the magistrate courtsThough situated at the very bottom of the judicial hierarchy, the judicial magistrate courts play a significant constitutional function, where every person arrested must be produced within 24 hours of arrest.Focus on the pretrial phaseThe emphasis of the study is on the pretrial phase of the criminal legal process, particularly during first production and remand, and the constitutional values and substantive protections at stake in these proceedings.First production and remandThe study considers the public performance of magistrates at first production and remand hearings through courtroom observations in magistrate courts in Delhi. First Production and Remand refers to the due process procedures whereby the constitutional protections of the accused – life, liberty, dignity and safety – under Article 21, can be reviewed by the magistrate under Article 22 (2) of the Constitution of India.Ethnographic approachObserving the courtroom proceedings over a period of three months between – November 2022 to February 2023 – allowed the team of eight researchers to consider the functioning of courts at this stage, beyond questions of compliance with procedural requirements. Researchers focused on the role of multiple court actors, and observed the manner in which courtroom dynamics and social hierarchies mediated the experience of the accused in the courtroom.Artefacts of the arrest memo and medico-legal certificate (MLC)Observations attested to the prominence of two key procedural requirements at first production and remand, the Arrest Memo and MLC. Both these artefacts were originally introduced to ensure transparency and accountability in police action and the safety of the accused on arrest and in detention. Rather than thinking of these safeguards as bureaucratic documents, we define them as artefacts that were introduced as creative mechanisms to address concerns with liberty and safety of the accused at this stage, and function as a starting point for the judicial scrutiny of the magistrate at first production and remand – making it a substantive protection and not only a technical requirement.Engagement of magistratesMost magistrates ensured the presence of the Arrest Memo and/or the MLC in the file during production and whether the required details were filled in. The system thus acknowledges that the Arrest Memo and MLC are important to protect the accused from illegal detention and torture in this vulnerable phase of custody.Role of remand lawyersDespite ‘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 magistratesStructurally, 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; contributing to the absence of remand lawyers and legal representation. The heavy workload of magistrates, and the perception of these pretrial proceedings as unimportant, might result in magistrates not treating each and every production matter before them as unique and warranting a careful inquiry into the detention and well-being.Invisibilisation in causelistProduction 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 violationsWhile there are constitutional and statutory protections to be followed on arrest and in custody, there is an absence of clear guidance about the tools available for magistrates to deal with the violation of these safeguards at first production and remand.An ethnographic study of first production and remand in Delhi courts by Taniya Roy on Scribd
