Economic and Political Weekly September 16, 2006

through the familiar sight of regularly visiting lawyers.

In fact, in some prisons the officials promptly process the requests for legal aid. But it is done in more a casual manner rather than effectively useful to the accused. Even where officials casually forward requests by the undertrials for legal aid and receive intimation from concerned magistrates that a particular lawyer has been appointed as a defence counsel, the accused are very often not aware of it because the fact is not promptly told to them. As well, legal aid counsels do not themselves make it a point to visit or proactively approach the families of undertrial prisoners or inform them regularly about the progress of the case, undertrials remain under the impression that they are not being provided legal aid. Since there is no system that explains to the accused that standing legal aid counsel in the court is supposed to represent them when they are produced before the magistrate they certainly do not know that there is any standard expected from their lawyer or any of their rights in relation to getting good service from counsel.

In some of the cases that came to our notice undertrials are under the impression that they have to pay to the legal aid counsels. The lack of progress in the cases, and non-appearance of the legal counsel in the prison and court reinforce the impression that without payment service cannot be insisted upon or even expected. In some districts, for instance, in Karimnagar and Nellore, we were given strong indications by those we interviewed that the undertrial prisoners are sent strong signals that they are expected to pay a fee to legal services counsel.

Poor Legal Representation

The videoconferencing has been introduced as a means of dealing with lack of escorts and cutting down on time taken in toing and froing from court. However, now there is a need for a fresh look at the functioning of legal aid in the context of increasing usage of the videoconferencing system existing between courts and prisons. At present the videoconferencing is routinely used merely to extend remand periods of undertrials. In court, counsel would be present. However, it has become the habit for there to be no counsel present at the videoconferenced hearing.

We did not witness a single instance in videoconference rooms of any courts in the state, where either defence counsels or legal aid counsels were present when extensions for remand were being decided. While the presence of legal aid counsels is specifically insisted upon when the accused is physically produced before the magistrate, like in Mahaboobnagar, in the subsequent hearings, it is not the same with the case of videoconference proceedings. The absence of legal aid counsel during the remand extension hearings can be a ground for removal of such counsels from empanelment of legal aid system. The demand for money, absence during remand extensions and negligence of duties by the counsels are all contrary to the guidelines issued by the state legal services authority (SLSA) of Andhra Pradesh.2

Documentary evidence of specific instance of non-availability of legal aid bears out our experiences and observations. As on December 25, 2004, there were 936 undertrial prisoners in Andhra Pradesh, who had completed more than one year behind bars. Of them 78 undertrials did not file a bail petition, the prison records say, for want of advocates. It is important to note that in almost all these cases, the police did not even bother to file chargesheets. After 90 days the prisoners would have been near automatically entitled to bail, if legal aid counsel was made available and charge-sheets were filed in all these cases as per the judgment of Supreme Court.3

The absence of strong monitoring systems to gauge the performance of the legal counsels appointed to each court is one main cause of the neglectful service provided. Another important reason for poor legal representation is the lack of information to the accused and his/her family about the particular counsel that has been designated to represent the case and the standards and services that the client is entitled to expect. Since even the orders from magistrates to prison officials informing them of allotment of counsels remain in English, remand prisoners are at the mercy of prison authorities for that information. This need of the accused is met by recent guidelines issued by the SLSA of Andhra Pradesh to display information of legal aid counsels at the courts in Telugu. To make it more effective, there is a need to display complete information about all the legal aid counsels in and outside of the prison premises also to which the family members of accused frequent. At present the boards in prisons merely say that legal aid is available but do not specify the details. It is also necessary to maintain an attendance register even in videoconference rooms in each court to ensure the attendance of legal aid counsels. Some mechanism should be set up to review the performance of the appointed counsels periodically by magistrates by visiting prisons once in a month. This is to ensure that magistrates’ orders providing legal aid are honoured in letter and spirit by the legal counsels. There is a need for setting up of legal aid cells in all the prisons to bring awareness among the inmates on the legal aid services and their standards they can expect from legal aid counsels. There is also an urgent need to set up a mechanism to monitor the functioning of the legal aid counsels in this regard and reiterate guidelines along with the consequences that can follow for noncompliance. Without firm standards there is no incentive to perform according to the codes of practice espoused by the profession.

Lack of Escort

A major reason for long overstays in prison is non-production of the accused in court because of non-availability of an escort force. The government figures put the production rate at more than 85 per cent. But this indicates the overall average and does not take an account of particular segments, which are particularly badly affected by the alleged lack of escort. Women account for 5.6 per cent of the total prison population on any day in a year, but they constitute 13 per cent of total number of admissions throughout 2004-05. They are housed in all prisons primarily meant for men as well as in the state jail for women in Hyderabad and Rajahmundry. They come from several districts to these limited facilities. The police of East Godavari and Hyderabad have to provide female escorts and produce the women undertrials in courts situated outside those districts. There is a shortage of female escorts here as well as in other districts where women are confined.4 Therefore, women prisoners more than their male counterparts are likely to miss hearings and have their stays routinely extended.

Another badly affected group come from amongst undertrials housed in sub-jails.

Economic and Political Weekly September 16, 2006 These problems show up more in the subjails of Rayalaseema region, but not exclusively.5 The district level undertrial review committee of Mahaboobnagar,6 pointed to the many cases pending before various courts in the district for want of production before the courts. At the end of year, there were 13 accused involved in eight cases in jails for more than one year. There were also 32 accused involved in 28 cases in jails of the district for more than six months. As on June 30, 2004, in Hyderabad and Secunderabad jurisdictions, there were 93 undertrial prisoners awaiting trial for more than one year and 96 were for more than six months. The district level review committee of Hyderabad7 points out that these cases are pending because police fails to execute non-bailable warrants and does not file charge-sheets for years together.

The instances and situations have been observed in the course of visits over seven months to 20 jails across 16 districts of the state. There is no reason to believe that the situation is better in any particular district, or that these instances are not typical of the system, which can with a little coordination and oversight work far better and significantly reduce both the rights violations implicit in lack of attention to these matters and the acceptance by oversight bodies of poor practices. The poor condition of service in the prisons and in statutory authorities like the legal aid service does little to help the situation. However, this cannot be a reason for abjuring responsibility for providing regular services to the client group created by law or reduce the level of duty owed to the indigent prisoner. Similarly, in relation to lack of escort, it is the duty of the state to ensure that citizens are afforded every opportunity to be present at court and that the routinised practice of returning a warrant for appearance in court to the authorities with the comment that an extension for hearing be granted because there is no escort is to be deplored. This amounts to the prison/police authorities who are third parties to the case between state and citizen interfering in the process and amounts to a violation of the standards of fair trial. Such practice cannot be condoned.

If courts do not tolerate such routinsed means of retaining prisoners in jail for unfair and overlong period across the state, means will be found to remedy the situation, which now prevails. One solution lies in ensuring that undertrials are housed in jails closer to the courts in which their trials are pending and another necessary requirement is that each authority involved in ensuring an appearance including the legal aid counsel, the prison and the police escort responsible for producing the accused in court be required to coordinate so that the prisoner is not required to spend more time in jail than is absolutely unavoidable and so that fair trial guarantees are not defeated. That stringent adherence to these requirements will have the longterm effect of easing the chronic overcrowding in Andhra jails as well and send a salutary signal to all the authorities concerned in regard to their individual duties to produce the accused in court and not compromise the freedom of citizens for want of proper systems.

EPW

Email: karnammurli@rediffmail.com

Notes

[The writer is grateful to Maja Daruwala, director of Commonwealth Human Rights Initiative (CHRI) for generous comments on the draft.]

1 National Crime Records Bureau, ministry of home affairs, government of India, 2002.

2 1 Legal Aid Counsel should give legal assistance to the persons in custody, for opposing remand applications, for filing bail applications and moving miscellaneous applications as may be required. 2 Legal Aid Counsel is under obligation to remain present, in the court assigned to him/her, during remand hour and such other hours as may be directed by the courts concerned.

3 Common Cause, a Registered Society vs Union of India AIR 1996 SC 1619.

4 Proceedings of the High Level Committee on Production of Remand Prisoners in Courts, January 20, 2005.

5 The average figures of prisoners are always very deceptive. The annual inflow and outflow of undertrial prisoners from subjails is more than 73,000 but authorised capacity of 120 sub-jails is 3,175. If we go by averages as on March 31, 2005, for instance, the sub-jails of Chittoor district are housing 37 per cent more undertrials than the authorised accommodation. Similarly, the central prison of Kadapa and district prison of Mahaboobnagar were housing 94 per cent and 258 per cent of more than their authorised accommodations.

6 Dated November 15, 2004.

7 Dated August 21, 2004.

Economic and Political Weekly

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Economic and Political Weekly September 16, 2006