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«* The title of this piece intentionally draws upon the famous phrase, “justice delayed is justice denied,” in that our specific focus is on ...»

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Criminal law scholars regularly maintain that American prisons are overcrowded and that defendants in custody wait long periods of time before having

their cases brought to trial. A similar refrain is made of the penal process in India—the world’s largest democracy, an ally of the United States, and a country with a judiciary that draws upon American criminal procedure law. In fact, the situation in India is thought to be much worse. Accounts of prisoners languishing behind bars for several years—and sometimes decades—awaiting their day in court are not uncommon. Many Indian prisons are between 100% and 200% over capacity, where conditions are squalid and the weaker inmates face serious physical harm.

In this study, we examine the current state of the Indian criminal justice system. Beginning in 1979, the Indian Supreme Court, referencing the American Constitution’s Sixth Amendment, held that defendants had a fundamental right to a speedy trial. We examine the evolution of the Indian jurisprudence on * The title of this piece intentionally draws upon the famous phrase, “justice delayed is justice denied,” in that our specific focus is on procedural rules and norms and how the absence of these can lead to a systematic denial in justice. (Note there is conflict as to who actually coined this saying. It is often attributed to William E. Gladstone, while there is contention that it traces its roots to the 1215 Magna Carta. Compare LAURENCE J PETER, PETER’S QUOTATIONS 276 (1977), with Bob Woffinden, CCRC’s Extreme Delays, INNOCENT, July 2009, http://www.innocent.org.uk/cases/ Karl%20Watson%20-%20Woffinden%20art.pdf (last visited Mar. 29. 2011).

** Charles L. Whistler Faculty Fellow and Professor of Law, Indiana University Maurer School of Law. jkrishna@indiana.edu.

*** Vice Chancellor, O.P. Jindal Global University, India, Dean, O.P. Jindal Global Law School, India, and member, National Legal Knowledge Council of India. During the fall of 2010, Kumar held the George P. Smith Visiting Professorship at Indiana University Maurer School of Law. crk@jgu.edu.in. © 2011, Jayanth K. Krishnan and C. Raj Kumar.

Acknowledgments: For their valuable insights and thoughts, the authors express gratitude to Justice Dalveer Bhandari, Craig Bradley, Donald R. Davis, Mark Edwards, Jonathan Gingerich, Wayne Logan, Law and Justice Minister Veerappa Moily, Ted Sampsell-Jones, Viplav Sharma, Aditya Singh, Solicitor General Gopal Subramaniam, and Tung Yin. For her research work, great thanks to Aditi Banerjee; and for his library assistance we thank Ralph Gaebler. Finally, we are indebted to the lawyers, civil society activists, judges, and law enforcement officials who graciously assisted us with our research, albeit on the promise that we keep their identities confidential. Your request has been fully respected.

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this matter, which has been quite favorable for defendants. Then we move beyond this line of inquiry by empirically evaluating whether the positive court rulings have translated into tangible changes for the criminally accused. As our findings suggest, there exists a major gap in India between these encouraging judicial pronouncements and how the right plays out in reality, which we believe provides an important perspective for comparative and criminal law scholars.

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In the United States, perhaps no modern legal scholar has made as significant an impact on the Sixth Amendment’s speedy trial clause than Professor Akhil Amar of Yale Law School.1 In his work, Amar uses detailed, historical legal analysis to make a provocative argument concerning the rights of defendants who failed to receive a speedy trial.

Amar contends that in such cases the remedy of “dismissal with prejudice”2—the standard set-forth by the Supreme Court as early as 19723— can perversely serve as a “windfall”4 for defendants and place society in danger, especially when there is overwhelming evidence that the pre-trial detainee is guilty.5 Instead, for Amar, the proper remedy in these instances involves releasing the defendant, allowing the prosecuSee e.g., AKHIL AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES (1997);

Akhil Amar, Sixth Amendment First Principles, 84 GEO. LJ. 641 (1996) [hereinafter Amar, Sixth Amendment]. For a classic work, to which Amar refers, see generally Anthony G. Amsterdam, Speedy Criminal Trial: Rights and Remedies, 27 STAN. L. REV. 525 (1975).

2. See Amar, Sixth Amendment, supra note 1, at 645.

3. Barker v. Wingo, 407 U.S. 514 (1972); see also Doggett v. United States, 505 U.S. 647 (1992) (reaffirming the balancing test set-forth in Barker).

4. See Amar, Sixth Amendment, supra note 1, at 646.

5. Id.

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tion to re-file charges at a later date, but also providing the defendant with some form of compensatory or punitive damages.6 Amar’s framework has received a great deal of attention, but also harsh criticism from those who accuse him of rolling back the advances made on behalf of defendants who often lack sufficient resources or sophistication to have proper representation.7 In addition, there is the charge that his work is too ethereal and constitutionally focused (and thus ivory tower in nature);8 when, in fact, in practice there is little speedy trial litigation in the first place. After all, across the country there are state statutes that address this subject, with which prosecutors usually comply.9 If litigation does occur, it is often based on technical grounds rather than on classic Sixth Amendment principles.10 Nevertheless, the Amarian notion of not dismissing charges, carte blanche, against a defendant whose speedy trial right has been violated raises interesting issues especially when comparing it to other legal systems. Indeed, his framework is informative and useful for considering how India, a democracy with a common law legal system that draws on the United States, has been struggling with a serious backlog in criminal cases that have failed to reach the courts.

In India there are thousands of defendants who have been languishId. at 652–58.

7. For one of the harshest critiques of Amar’s criminal procedure work generally, including, in part, his Sixth Amendment analysis, see Susan R. Klein, Enduring Principles and Current Crises in Constitutional Criminal Procedure, 24 L. & SOC. INQUIRY 533 (1999) (reviewing AKHIL AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES (1997)).

8. See id. at 534, 536 (noting, derisively, that Amar’s analysis “is myopic and his analysis fails to mesh with the empirical world of criminal law practice.” And that “Amar often ignores critical issues in constitutional criminal procedure... [and may do so partly] because he lacks real-world experience in the criminal justice system, and in part because the issues with which he chooses to grapple are better suited for academic discourse: they do not involve factual questions requiring empirically based answers, they are relatively self-contained, and they are more amenable to a unified theory.”).

9. See e.g., SUSAN N. HERMAN, THE RIGHT TO A SPEEDY AND PUBLIC TRIAL: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 223 (2006) (noting that “[t]here are not many examples of state courts relying on their own state Constitutions to create more expansive speedy trial rights for criminal defendants, although state statutes and rules do set clearer and more demanding time limits than the federal constitutional floor would usually require.”); see also Brian P. Brooks, Comment, A New Speedy Trial Standard for Barker v. Wingo: Reviving a Constitutional Remedy in an Age of Statutes, 61 U. CHI. L. REV. 587 (1994); Email Correspondence with Professor, Expert Practitioner, and Criminal Defense Lawyer, Ted Sampsell-Jones (May 3, 2010) (on file with author) [hereinafter Sampsell-Jones Correspondence].

10. This might include, for example, whether a judge’s schedule, which may be overbooked, tolls the prescribed period specified within a jurisdiction’s given statute. See Sampsell-Jones Correspondence, supra note 9.

2011] 749


ing in jails,11 awaiting trial—many for longer than a formal sentence would have brought. The term of art used to describe all non-convicted defendants within the Indian criminal justice process is “undertrial” in that these individuals are deemed to be under the umbrella of the trial process.12 Undertrial-prisoners are thought to comprise a staggering seventy percent of India’s incarcerated population.13 Moreover, this issue is one that many within the country have recognized as reaching a breaking point; consider that diverse observers such as high-ranking government officials, civil society activists, lawyers, and judges have in unison called for massive reforms in the country’s penal process.14 This crisis is occurring against a paradoxical Indian landscape.15 On the one hand, India is a dominant power on the world stage today. With a potent nuclear arsenal, high economic growth, a vibrant and young labor force, and ever-increasing levels of foreign investment,16 India is

11. In India the term “jail” is used more frequently than, but interchangeably with, the term “prison.” Parts III and IV of this article discuss the statistics involving those who are in Indian jails, but one of the alarming facts is how Indian jails often do not segregate their inmates, thus resulting in a situation where people awaiting trial are sharing cells with hardened convicts. See discussion infra Parts III, IV. In contrast, in the United States, there is a distinct difference between jails and prisons, with the former often having less formalized protocol and greater variation in enforcement standards than the latter. The result is that jails can at times place inmates in greater danger than prisons. (This is even given that jails typically hold people for misdemeanors or as they await final outcomes of trials, while prisons generally incarcerate people convicted of felonies.) For a recent series on the American jail and prison system, see Crime and Punishment in America: Rough Justice, ECONOMIST, July 22, 2010, available at http://www.economist.com/node/ 16640389; see also DEP’T OF JUSTICE, REPORT ON RAPE IN JAILS IN THE U.S (Dec. 29, 2008), http://www.ojp.usdoj.gov/reviewpanel/pdfs/prea_finalreport_081229.pdf [hereinafter DOJ Dec. 2008 Report]; DEP’T OF JUSTICE, REPORT ON RAPE IN STATE AND FEDERAL PRISONS IN THE U.S., (Sept. 24, 2008), http://www.ojp.usdoj.gov/reviewpanel/pdfs/prea_finalreport_080924.pdf [hereinafter DOJ Sept. 2008 Report]. We thank Professor Wayne Logan (Florida State University) for highlighting this important point to us.

12. This term will be used, referenced, and cited extensively in Parts II–IV.

13. The Indian Minister for Law and Justice, M. Veerappa Moily, himself has noted this statistic. See 92,000 Undertrial Prisoners Released Across India, IGOVERNMENT, May 27, 2010, http:// igovernment.in/site/92000-undertrial-prisoners-released-across-india-37660. We will be discussing the Law Minister’s efforts in Parts III and IV.

14. We highlight in detail the work and studies of these various observers in Parts II–IV. But see KIRAN BEDI, IT’S ALWAYS POSSIBLE: ONE WOMAN’S TRANSFORMATION OF TIHAR PRISON (2006) (arguing that the situation in one of India’s most notorious penitentiaries has improved).

15. For a discussion of this particular term and occurrence of this “paradox,” see The Paradox of India’s New Prosperity, REDIFF BUSINESS, Jan. 14, 2010, http://business.rediff.com/column/2010/ jan/14/guest-the-paradox-of-indias-new-prosperity.htm.

16. Country Fast Facts: India, CBS NEWS, http://www.cbsnews.com/stories/2007/10/04/ country_facts/main3328865.shtml (last visited Mar. 20, 2011); India’s Economy: Turning Sour, ECONOMIST, Aug. 2, 2008, http://www.economist.com/node/11848576?story_id E1_TTRQRVSG;

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a country that most acute international observers see as being a lead actor in the twenty-first century.17 Further, the beauty of the Indian experiment is that despite the odds, it succeeds as a pluralist parliamentary democracy.

At the same, however, India suffers from a host of major problems.

Corruption, intense poverty, illiteracy for large swaths of the population, a lack of adequate educational institutions, and poor infrastructure are just some of the daunting challenges that confront the Indian state.18 Furthermore, empirical research conducted on the civil justice side of the Indian legal system highlights a routine failure, on the part of the courts, to provide remedies to aggrieved parties in a timely manner.19 With these hardships present, it is difficult to envision how the state can also cope with such an underperforming criminal justice system. Yet that is the place India currently finds itself; namely, in a situation where because of how glacially slow the adjudication process is for criminal matters, this system and many of its administrators are seen as all but ineffectual. For a country that aspires to be a leading democratic power during the millennium, it thus seems untenable that this goal can be achieved when speedy trials for defendants, and an Dreaming with BRICs: The Path to 2050 (Oct. 2003), http://www2.goldmansachs.com/ideas/ brics/book/99-dreaming.pdf; BRICs and Beyond (Nov. 2007), http://www2.goldmansachs.com/ ideas/brics/BRICs-and-Beyond.html; Neil Rose, Passage to India?, LAW SOC’Y GAZETTE, Apr. 17, 2008, http://www.lawgazette.co.uk/features/passage-india-0.

17. See supra text accompanying note 16.

18. In terms of data on corruption in India, Transparency International (TI) has been at the forefront of tracking and critiquing this problem. For information from TI-India (TII), see Transparency International India, http://www.transparencyindia.org/ (last visited Mar. 6, 2011);

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