The most important constitutional functionary? It’s the JM

I’ll begin this piece by asking readers this: Who, in your view, is the most important constitutional functionary? Specifically, which person empowered by the Constitution decides the fate of thousands on a daily basis and defends the right to life and liberty?

Did you say, the Chief Justice of India or a High Court judge? The Prime Minister or a Chief Minister? Maybe one of the election commissioners?

The correct answer is someone you probably didn’t think of at all -- the humble judicial magistrate.

Why do I say this? Because of an important right guaranteed under Article 22, specifically Clause (2), which says that any person who has been taken into police custody shall be brought before the nearest magistrate within 24 hours of being taken into custody. The accused doesn’t need to personally go to court to enforce this right -- it is framed as a duty on the police to produce such accused in court.

Article 22(2) has been borrowed to a large extent from Section 61 of the Code of Criminal Procedure, 1898, and is also implemented in Section 167 of the Code of Criminal Procedure, 1973, which replaced the earlier code. It is quite interesting to note that the framers of the Constitution considered this little part of criminal procedure so important that they did not hesitate to borrow the language from a colonial law and elevate it to the level of a fundamental right.

What was the intention behind the introduction of this clause into the Constitution itself?

Recall that Article 21 mandates that no person shall be deprived of life or liberty without following the procedure of law. Some believed that this meant that no matter how unjust or ridiculous the law was, as long as it was followed, life and liberty could be taken away. Ambedkar moved to check this understanding by introducing clauses (1) and (2) of Article 22, which set minimum standards of what is “procedure established by law.” In explaining this to the Constituent Assembly, Ambedkar said:

“Article [22] merely lifts from the provisions of the Criminal Procedure Code two of the most fundamental principles which every civilised country follows as principles of international justice...But we are, as I contend, making a fundamental change because what we are doing by the introduction of Article [22] is to put a limitation upon the authority, both of Parliament as well as of the Provincial Legislature, not to abrogate these two provisions, because they are now introduced in our Constitution itself.”

As with other clauses of Article 22, the first two clauses of Article 22 also saw fierce debate, with members suggesting a number of improvements to make protections for liberty more robust. Thakur Das Bhargava proposed a detailed Article that would protect the right of cross examination, right of appeal, freedom against torture and a speedy trial. His passionate speech in favour of protecting the rights of the accused makes for stirring reading, though eventually only a small part of the suggestions -- the right to be defended by a lawyer -- was accepted. One wonders though what would have been the state of civil liberties in the country if his proposals for making the right to speedy trial, et al, fundamental rights had gone into the Constitution.

Enforcing Article 22(2) can sometimes be the difference between life and death -- as we found out in the horrific custodial killings of Jeyaraj and Bennix, who were tortured to death by the police in Sathankulam, Tamil Nadu. As horrific as the police behaviour was, in the words of former High Court judge Justice K Chandru, the judicial magistrate before whom the police produced Jeyaraj and Bennix had committed “judicial impropriety and misconduct” in sending them back to police custody without examining their condition. Justice Chandru went so far as to call for the magistrate’s dismissal. The Supreme Court has repeatedly held that the magistrate must examine whether any custody is even needed.

We tend to discuss civil liberties only when high-profile cases end up in the SC or High Courts, but it is important to remember that the war for civil liberties is being fought every day in thousands of nondescript courts across the country. No judgement of the SC or any HC is as effective in protecting civil liberties as a magistrate exercising her discretion when police produce an accused before her and ask for remand. It may require no more than writing two lines, and involve no more than two questions being answered, but it carries more power than the purplest of prose produced by the higher judiciary.