Criminal 'Injustice': How Courts Use 'Remand' to Penalise the Poor

The culture of "mechanical remand" has normalised privileging police narratives over the rights of the accused.

Illegal arrests, mechanical remand, and absence of legal representation — the criminal justice system continued to remain punitive even during the deadly second wave of the COVID-19 pandemic.

The Quint analysed 153 remand orders passed by magistrates from all trial courts in Delhi, during the peak of the second wave (30 April-15 June). To substantiate the themes emerging from the remand orders, we interviewed 25 remand lawyers (legal aid counsel) empanelled with the District Legal Services Authority across the state.

The analysis and interviews revealed blatant violation of the principles of arrests and remand as established by the Supreme Court. It also exposed a 'culture of punitivity' where compromising the rights of the accused and a mechanical acceptance of the police's narrative has become the norm.

Remanded to Injustice

On 8 May 2021, the Chief Justice of India led bench of the Supreme Court recognised the imminent need to prevent prisons from becoming the breeding ground for the new COVID-19 variant. The apex court directed the police and magistrates to strictly comply with the guidelines laid down in Arnesh Kumar vs state of Bihar case.

"Reduction of impact of COVID-19 requires this court to effectively calibrate concerns of the criminal justice system, health hazards and rights of the accused... This court, being the sentinel on the qui vive of the fundamental rights needs to strictly control and limit the authorities from arresting accused in contravention of guidelines laid down by this court in Arnesh Kumar vs state of Bihar case during the pandemic."

Supreme Court of India

In Arnesh Kumar vs state of Bihar (2014), the Supreme Court held that police officers shall not arrest the accused unnecessarily and the magistrate shall not authorise detention "mechanically" or "casually". Criticising the persistence of the criminal justice system's "colonial attitude" even 75 years after independence, the court laid down the following guidelines:

• The manner of the arrest should not be casual and based on a mere allegation made against a person. The arrest should be preceded by initial investigations by the officer to assess the genuineness of the complaint.

• Proper facts and reasons should be presented before a Magistrate by the officer affecting the arrest within 24 hours of the arrest. The magistrate in turn is to be satisfied that conditions precedent for arrest under Section 41 CrPC have been satisfied, and only thereafter will he authorise the detention of an accused.

• Police office must ensure they do not arrest accused unnecessarily and magistrate do not authorise detention casually and mechanically. Authorising detention without recording reasons as aforesaid by the judicial magistrate concerned shall be liable for departmental action by the appropriate high court.

The guidelines in the Arnesh Kumar case are binding in all cases concerning non-heinous offences (punishable with imprisonment of seven years or less). The court's intention was to ensure that custodial remand doesn't become a norm in non-heinous offences, even if they are non-bailable and cognisable.

Decoding 'Mechanical' Remand

The Quint's investigation reveals flagrant violation of the Supreme Court's guidelines in the Arnesh Kumar case, its commitment towards decongestion of prisons, and the basic principles of criminal justice.

In an overwhelming majority of cases, the magistrate didn't even bother to ensure legal representation for the accused before remanding them to custody.

Even in cases involving non-heinous offences (punishable with less than seven years of imprisonment), the accused were remanded to the entire 14 days of judicial custody. The mechanical nature of remand becomes evident in the absence of reasons in the order for justifying such remand, a complete ignorance of the norms laid down in the Arnesh Kumar judgment.

In the majority of cases where remand was ordered, the arrested person was accused of either theft or of receiving stolen property (punishable with maximum three years of imprisonment).

The remand orders were "non-speaking" (devoid of justifications), and simply replicated the narrative of the police as judicial reasoning. This replication became apparent when the magistrates used "heinous/serious offence" as a ground to justify remand of arrested persons accused of offences punishable with the maximum imprisonment of just one year.

The reading of remand orders also revealed a worrying trend of continued incarceration despite being granted bail. Magistrates addressed considerable number of applications from those who, despite being granted bail, could not be released due to want of sureties or not being informed about their bail.

Punishing the Impoverished 

Testimonies of remand lawyers and observations from the orders reveal that it is the socio-economically underprivileged class that gets caught in the "revolving door" of arrests and incarceration.

There is a pattern of making arbitrary arrests of individuals from socio-economic backward groups merely on suspicion, who then get remanded to jail custody not for "heinous crimes", but for petty offences.

"Most of these cases (remand proceedings) involve the poor, such as rickshaw pullers and daily wage labourers, arrested just on the suspicion of theft. These people don't know how many cases are filed against them, they lack legal representation. Even the orders passed by the court are not communicated to them in time by the jail superintendent."

A remand lawyer empanelled in DLSA of New Delhi district

The lack of financial and social wealth renders those arrested under petty offences "defenceless" against a discriminatory and punitive criminal justice system. They do not have private lawyers who can challenge their arrests, seek anticipatory bail, or protect them from unnecessary incarceration.

The "large chunk" of those who get remanded to jail custody are too poor to afford lawyers. Therefore, the burden of ensuring them legal representation falls on an already crippled legal aid system.

"Jail visiting legal aid advocates have to draft hundreds of applications a day. It is impossible for them to properly interview each and every accused seeking legal aid. They have to rely on jail officials or the prisoners themselves, who often do not have information on their own cases. So the applications drafted by the jail visiting advocates often miss out on important details that can help in seeking release of the accused."

Remand lawyer empanelled in the DLSA of central district

Deprived of lawyers and adequate information about their case, prisoners frantically move multiple applications before the jail visiting advocates, resulting in several repetitive claims. Burdened with paperwork and with little time to inspect each claim, jail visiting advocates fail to filter out duplicate applications before forwarding them to be filed before the court.

"We receive so many applications of prisoners who were not released from prison despite grant of bail, because they were never informed about their bail by the jail superintendent."

Remand lawyer empanelled with the DLSA of west district

The Culture of 'Mechanical' Remand

The sheer volume of indiscriminate arrests, bail applications, and understaffing in the lower judiciary — remand lawyers identified these as systemic problems that engender the culture of 'mechanical remand'.

"Magistrates have a humongous case load. They just can't and don't take the facts of each case seriously. They are just focused at disposing as many cases as they can in a day."

Remand lawyer empanelled with DLSA of New Delhi district

In this race against time, the rights of arrested persons take a backseat and the police's narrative is given importance without much critique.

"Magistrates are blindly trusting the police's narrative while remanding, it is a traditional practice. It has become very common for magistrates to remand without presence of legal aid lawyers."

Remand lawyer empanelled with DLSA at west district

The burden of pendency of cases also results in remanding the arrested person to the complete 14 days of judicial custody, without questioning the need for such a prolonged period of incarceration. Remand lawyers believe that this probably has to do with the magistrate trying to avoid production of the accused before the court at short intervals.

"Magistrates feel that they can't afford to hold remand proceedings for the same person at short intervals, it will just "waste" too much time. So, they remand them to 14 days in one go."

Remand lawyer empanelled with DLSA at central district

Injustice Aggravated by the Lockdown

The mechanism to provide quality and adequate legal aid to the underprivileged was already an unfulfilled promise. However, the woes of the existing system got aggravated by the "video-conferencing (VC) hearings" introduced due to the COVID-19 lockdown.

"Due to the lockdown, there was no interaction with the accused even on the day of the hearing as they were produced through VC. Imagine, I was tasked with defending a person I've never even met or talked to! The accused didn't even know who their lawyer is."

Remand lawyer empanelled with DLSA at New Delhi district

Lack of physical access to court premises further alienated remand lawyers from those they were supposed to defend. This left remand lawyers with no choice but to rely on facts stated in the police report to argue before the court. Facts, that were never meant to serve accused's interests.

"Due to the lockdown, I couldn't get in touch with the court staff, so I couldn't inspect the files, I didn't even have the copy of the FIR, I couldn't even interview the family members of the accused."

Remand lawyer empanelled with DLSA at east district

Therefore, the VC hearings further alienated the interests of the accused from the criminal justice procedures. They anonymised the accused, reducing them to "case-files".

Injustice Wired Into the System

The scale of our study was small and restricted to trial courts situated in the national capital. However, it still brought to light the culture of punitivity that never ceases to penalise the most disadvantaged.

Even those who are supposed to defend are "ill-equipped". Many remand lawyers were not aware of the directions of the Supreme Court in the Arnesh Kumar case.

"The main motivation of many remand lawyers is clocking-in their attendance. Just to get their appearance recorded in the order. They think their jobs ends there."

A senior remand lawyer in Dehi

Injustice has been routinised in the everyday practices at the trial courts. The culture of mechanical remand, where rights of the accused are getting neglected, has now become a "tradition". It is operating with impunity, with such normalcy, despite the strictures of the Supreme Court.

The discourse on judicial reforms would remain lip service as long as the focus is not shifted towards the everyday practices of the "lower judiciary". Even before we talk about a change, we first need to acknowledge that the problem exists, and how it is nothing less than "judicial violence".