It was interesting to read a reference to Guantanamo in an order by a Judicial Magistrate in India in a news report by The Indian Express.
In the said case, the Police had requested the Court for extension of judicial custody of a person stating that though it (the Police) did not require him for interrogation, he should be sent to judicial custody. The Court reportedly observed that such a step would in fact amount to extra-judicial custody.
To make it clear to readers, in India, police custody is the period when after an offence the person is in the custody of the police where he could be interrogated and investigated. However, after a certain period, usually Courts send the person to judicial custody where the accused is under the charge of the prisons department (also known as jails department) where the police has no access, control or jurisdiction, and where a person may also be kept simply for the reason that he may not interfere with the investigation.
Despite the slow moving judicial system in India and despite all pitfalls, it is refreshing to note how, like other democracies, constitutional rights and independence are respected and cherished. I may however clarify here that the Court of a Judicial Magistrate is the lowest part of the judicial hierarchy and is not a Court of Record and neither does it lay down law, but Indian Constitutional Courts (High Courts and Supreme Court), ever since the early 1950s, have consistently upheld such principles. Readers may also be surprised to learn that even handcuffing of accused is not allowed in India except in the case of dangerous prisoners. The law on the use of handcuffs is explained succinctly here.
Coming back to the order of the Court, the following excerpt from the news report adequately catches the spirit of the order of the Magistrate:
The court also questioned the police for seeking Alam’s detention time and again. “If such a trend is sanctioned by the courts of law… (considering) the might of the state with an approximate number of more than 200 police stations, with every police station registering an FIR, granting 90 days of exhaustive remand… before the accused reaches a court of law for trial, he would have already spent 49 years and three months in jail, thus negating the whole presumption of innocence of the accused guaranteed to him by law,” said the court. “The fact remains that the accused is involved in an offence as alleged in the FIR. But the accused hasn’t been detained for 90 days, but many 90 days commencing from April 15, 2015,” said the court. “If the accused is anti-national and detrimental to society, let the state discharge its duty in bringing the guilty to book so that they are punished suitably… However, despite the fact that the state alleges the accused to be anti-national, the right of the accused as guaranteed by the Constitution and principles of justice… can’t be denied to the accused indefinitely,” said the court.
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