Procedure as Punishment

The fact that the 27 people arrested at the University of Hyderabad are finally out on bail is heartening. I am told by seasoned lawyers that the terms of the bail are the sort given to hardened criminals, and not really to a group of students and faculty who have been picked up for obviously political reasons, but this is for those with experience to comment on. This piece is about the way in which legal process, in India, seems to have become punishment in itself. I think it is important to talk about, given how glibly people say, “let the law take its course,” “if so and so is innocent, then justice will be done,” and such like things. What do we do, if the law taking its (long and winding) course itself acts as punishment, how do we undo that damage, should the final outcome be acquittal?

When I arrived at the Court of the XXV Metropolitan Magistrate, Miyapur, at around half past noon on March 28, the bail hearing had already been passed-over twice because the public prosecutor was not in court. That is problematic, as such, but consider this: the hearing was reposted after the hearing on March 24, for March 28, because the public prosecutor sought time to file a counter. In this situation, is it not incumbent on the prosecution to be present in court at the earliest? And, when faced up with the public prosecutor’s absence, would it not be keeping with the idea of legal justice for the Magistrate to pass a bail order as quickly as possible, and with a strongly worded reprimand, seeing that the prosecutor was effectively the reason that 27 people were forced to spend three extra days in jail?

The complex that houses the court of the XXV Metropolitan Magistrate. The term Busiplex is intriguing: does it mean business complex? In which case, the legal justice machinery as business gets added, rather neatly, to the metaphor
The complex that houses the court of the XXV Metropolitan Magistrate. The term Busiplex is intriguing: does it mean business complex? In which case, the legal justice machinery as business gets added, rather neatly, to the metaphor

Many countries have systems where, if lawyers are repeatedly absent from court during hearings where they are to argue, or if they seek constant adjournments, they face disciplinary proceedings and can be barred from practise for months on end. Some sharp questions need to be asked about why we have no such disciplinary systems in place, and why such laggardly behaviour is tolerated in our courts. Why are lawyers, regardless of their seniority, found seeking endless adjournments? What is the Bar Council, the function of which is to regulate the practise of law, doing about it? Who gains when cases are stretched on interminably, while clients bear the costs?

When the public prosecutor did deign to arrive, ze informed the court that the state was not opposing bail since the law and order situation was under control.[1] This was right before lunch, and right after the Magistrate had had a long tea break. The logical thing would then have been for the Magistrate to grant bail, seeing that there was no opposition to it and the grant of bail is the norm. Instead, ze reserved orders for after lunch and then took a particularly long lunch break. Once the Magistrate was back, of course it was hoped that ze would finally give the bail order, except ze decided to hear the parties again, so, ultimately, we got a bail order at about 4:00 pm. Now, the lay-person’s understanding of things is that once you have the order, you can have the arrested persons released from prison if you take the paperwork there. True, except the magnitude of the paperwork is lost in that sentence. Arranging for sureties for all the 27, writing out 52 personal bonds (because it’s not per person, but per person, per FIR, which means doing everything twice over) and release orders (same logic), and having the Magistrate sign them is a herculean task when you have to do it by hand. It could be completed using technology in approximately 5 minutes, but why use technology when you can retain procedure that forces you to use reams of paper and waste hours of your time? There was not the slightest chance that the 27 would get out of prison until March 29.

Families, friends, faculty and complete strangers show up in the Miyapur Court in solidarity with the 27 arrested
Families, friends, faculty and complete strangers show up in the Miyapur Court in solidarity with the 27 arrested

I was not in court on March 29, but I am told that all the papers were filed as required by about 1:00pm, but they were signed only at about 4:00pm after a heated exchange between the lawyers for the defence and the Magistrate. The students, members of faculty and the independent film-maker got out of jail at 10:00pm, and they may well have had to spend another night inside lock-up, were it not for the legal team pulling all stops in having the police personnel involved accept the release orders after regular hours.

Now, I know that the Magistrate is accused of having a conflict of interest and predilection of sorts towards the right, so the fact that the entire process was protracted in order to keep them in prison for these extra days is no surprise. Nonetheless, what is worth pointing out, I think, is that all of what ze did, ze can justify within the rubric of legal process. Of course, it should not be the process, if you read the law as a conscientious lawyer, but ze can justify it as actions permitted by the law. This is not to say that people have not learnt over time to also play the system to their benefit, some have, and to paint a picture of complete haplessness would be false. But do we account for these dynamics and power imbalances, when we repose faith in legal process?

People gather around the doorway of the court (to the right), in order to see what's happening
People gather around the doorway of the court (to the right), in order to see what’s happening

The court complex at Miyapur (and it is hard to believe it is a court complex) was chock full of people there in support of the arrested 27: some folk who had come to stand surety, journalists and some who just felt they needed to be there in solidarity. And I think the three words I heard most often, through the entire day, was, “What is happening?” One member of faculty looked at me balefully as we struggled to get to the doorway of the courtroom to peek inside, and said, “What kind of system is this that simply nobody understands it?” Friends and families of those whose bail plea was being heard were equally clueless; they too were not permitted inside the courtroom (which was barely large enough for the lawyers, as such). One official of the court regularly shouted for silence, but ze seemed to realise the futility of hir task. There were no chairs, no fans, no toilet (for the women) for those waiting, spending an entire day in suspense. The physical space seemed to say: go away, you do not belong here, this place is not constructed so you can feel comfortable, it’s not even constructed so you can see what is happening, forget about hearing the proceedings, you are to remain ignorant while we go about our business on our terms. In that sense, that strange lavender coloured building was symbolic of what our entire legal process seems to have become: dingy, inaccessible, discomfiting to most people who are forced to encounter it, and unapologetic about it.

 

[1] This article uses gender neutral pronouns, since the gender of the persons involved is not germane to the issue being discussed. For the uninitiated, ‘ze’ is the gender neutral equivalent of ‘he’/’she’ and ‘hir’ is the equivalent of ‘him’/’her’.

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Anindita Mukherjee Written by:

A lawyer, presently working as a researcher with the Centre for Legal Philosophy and Justice Education, NALSAR University of Law, Hyderabad.

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