Attendance of Witnesses Confined or Detained in Prisons: Legal Framework and Practical Challenges

AUTHOR: RICHA PAREKH, SYMBIOSIS LAW SCHOOL, PUNE.

The court’s responsibility is to provide justice in all scenarios. The absence of a citation or subpoena power available to the Court to compel prospective witnesses to appear in court to testify is one of the biggest obstacles. One of the most important aspects of the Indian legal system is the ability of prisoners or confined witnesses to testify in civil trials. Particularly Order XVI-A of the Civil Procedure Code has procedures for calling witnesses, including those who are detained, so that their testimony can be collected when it is thought important for the case. They emphasize the witness summons procedure and the requirements that must be fulfilled in order for the witness to appear in court. This clause attempts to strike a balance between the accused's rights and the need to gather proof in order to support fair trials. This guarantees that each side has an equal chance to make their case, which is essential to the justice principle. Because cross-examination enables the authenticity and dependability of a witness's statement to be tested, it also enhances the credibility of the evidence that is offered in court. By creating a uniform procedure for summoning imprisoned witnesses, it reduces significant delays. This is crucial because drawn-out legal proceedings can make justice less effective. It emphasizes the defense of everyone's legal rights, regardless of whether they are incarcerated or not.  This enforces the notion of equality before the law and right to free and fair trial.

The practical implementation of these provisions is met with significant challenges that can undermine the judicial process. The necessity to transfer inmates in a secure manner to court is one example of a logistical challenge that frequently causes delays or even the total failure to call witnesses. Security considerations make these logistical challenges even more difficult. Additionally, the flexibility afforded to prison authorities by their discretionary powers may result in capricious determinations on the availability of inmates for testimony, generating irregularities that may have a detrimental impact on the impartiality of legal proceedings. Through the resolution of these practical issues, the legal system can enhance the protection of confined witnesses' rights, guarantee the seamless integration of their testimonies into civil procedures, and eventually fortify the judicial system's integrity, thereby helping to achieve the primary goal of seeking justice in civil suits.

What are the primary challenges, both legally and practically, to enabling convicted or confined witnesses to testify in civil cases in India, and how can the system be reformed to ensure fair trials? 

The principal aim of this study is to investigate the legal framework and pragmatic obstacles related to the attendance of prisoners or detainees as witnesses in civil procedures in India. The research attempts to:

• Assess the relevant sections pertaining to the attendance of witnesses who are detained or imprisoned in the Civil Procedure Code. 

• Enumerate the main practical obstacles that courts must overcome in order to get detained witnesses to appear in court. 

• Evaluate the legal systems of India and other countries to find innovative solutions and best practices.

Order XVI-A is a crucial legislation which addresses the procedure surrounding the attendance of confined witnesses in civil cases. It establishes a precise legal framework that maintains the need for justice.

Rule 1 defines what qualifies as confined or detained prisoners. It covers all individuals that are held under law for  preventive detention. It includes all types of confinements. Prisons not only consist of traditional jails but also include other facilities such as subsidiary jails, reformatory, borstal institute and similar facilities. It assures that individuals in all types of custody can be summoned. Despite the broader ambit the courts have still questioned the interpretation of Rule 1 and Rule 1A of Order XVI.

The Powers that are required for attendance of prisoners to given evidences are described     Rule 2. It gives courts the authority to order an individual who is imprisoned to give a testimony if their testimony is vital to the case. It guarantees the accessibility to prisoner testimony.  In order to guarantee that necessary evidence is taken into account, the court must determine if the prisoner's testimony is relevant to the case or not. In the case of National Insurance Co. Ltd., Bilaspur vs. Ku. Parmeshwari and Ors. stresses on the fact that the interested parties should verify if a convict’s testimony is critical for the case. Another important issue is about distance. If the prison is located more than 25 km  away from the court, the court must be convinced  that examining the witness via commission would not be sufficient.

Rule 3 prescribes the expenses that need to be paid to court. Before the court can pass an order under rule 2 The court requires the interested party asking for the witness to pay a certain deposit with the court. This deposit is used to pay for the costs involved in carrying out the order, such as the witness's escort and travel fees. This rule assures that the state does not bear the expense of transporting prisoners. Additionally, before making any such request it is urged to the parties to confirm whether calling the witness is necessary or not. In addition, if the said court is a subordinate to a High court, the court must take into consideration any rules passed by the High court regarding expense scales. When calculating the costs involved, this criterion guarantees uniformity and respect to higher judicial norms, which helps to create a more efficient and fair legal system.

Rule 4 talks about that state government has the power to prevent specific individuals or groups from being subject to Order XVI-A. This clause gives the government the power to impose restrictions on the removal of particular individuals or groups that are detained. No additional orders made under Rule 2, which authorises courts to require the attendance of convicts, will apply to such individuals after the State Government issues such an exclusionary order. This holds true when the courts issue an order before the government. The State Government must consider a number of considerations prior to utilising this authority, such as the nature of the offence of  the detainee, the possibility of disruptions to public order if they are released from custody, and the interests of the broader public. Through this analysis imposes on the government that it must uphold law and order while using its discretion is not used arbitrarily. The provision acknowledges that there are some unusual circumstances in which appearing in court may not be desirable by granting this discretion. This stops the arbitrary use of power and ensures that decisions are made in accordance with standards for society's benefit and public safety.

According to Rule 5, there are some circumstances in which a prison guard is not required to comply with a court order mandating an inmate's in-person appearance. This provision guarantees that the welfare and rights of individuals in custody are taken into account. If the prisoner is certified to be unfit for transfer due to disease or infirmity, the prison officer must not carry out the court's order.

The officer is likewise not required to comply while the prisoner is awaiting a preliminary inquiry, remand until trial, or committal for trial. Furthermore, if the prisoner is being held for a period of time that will end before the time  that will end before the time needed to follow the court's command and bring them back to jail, or if the person is subject to an exclusion order issued by the State Government. 

Rule 6 requires the prison officer in charge to transport the prisoner to court in custody in accordance with the court's order in circumstances not covered by the prior exemptions. The prisoner must appear at the appointed time, being detained close to the court until questioned, and then be allowed to return to the prison by the court. This guarantees the prisoner's presence while being watched over in order to uphold security and stop escape.

Lastly, Rule 7 gives the court the authority to commission a prisoner's examination if their testimony is important to the case but cannot be gathered via standard attendance procedures. This is applicable to individuals confined in prisons within the state or elsewhere in India. In the event that obtaining the prisoner's presence is not possible, the court may permit an examination to occur inside the prison. Beyond that, in order to maintain uniformity with established legal protocols, the terms of Order XXVI, which regulate the interrogation of witnesses on commission, will also apply to the interrogation of imprisoned persons. This clause is important because it gives courts alternatives to obtain incriminated witnesses' testimony. 

In the case of R.N. Tandon v. Madhya Pradesh Electricity Board, Madhya Pradesh Madhyastham Adhikaran Regulations, 1985 were framed using the guidance of the Rules I to 7 of Order XVIA of Civil Procedure Code,

• Logistical Challenges: There are several logistical obstacles to overcome while transporting arrested witnesses, such as limited transportation infrastructure. Many times, the cars that are utilised to transport inmates could not be safe to guarantee the detainees' safety while in route. Prison overcrowding can further complicate matters by limiting the number of inmates available for transportation and raising the possibility of delays. In addition, a lack of security guards might increase the threats involved in transporting imprisoned witnesses, which makes it more challenging to guarantee their safe arrival to court. When these situations are not properly managed, court orders are frequently not enforced consistently, which can eventually keep inmates from testifying. 

• Risk Evaluations and Minimising Strategies: Another significant problem is the absence of comprehensive risk assessment methods. If the hazards of transporting imprisoned witnesses are not adequately evaluated, authorities may unwittingly put them in danger. Threats from other inmates or other parties may fall under this category. Witnesses may become afraid as a result of this lack of foresight, which deters them from providing honest testimony. The legal system may grow more complicated if appropriate minimization strategies are not used and arbitrary decisions are made about who can and cannot be brought before the court.

• Discretionary Power of Prison Authorities: It may also be more difficult for detained witnesses to show up on time due to the discretionary power of prison administrators. These powers may allow prison officers to disregard court orders based on subjective assessments of a prisoner's eligibility for transportation or potential security concerns. This could lead to capricious rulings that undermine the justice system's impartiality. For instance, if a jail official decides that a prisoner is ineligible to travel due to health or general security concerns, the court may be denied crucial testimony. This disparity could eventually affect the outcome of the lawsuit and lead to courtroom delays.

The Law Commission Report No. 40, submitted in 1969, pointed out a number of holes in the current law controlling inmates' attendance at court and made recommendations for its improvement. The analysis found that the drawn-out procedures of these laws sometimes resulted in needless delays. For instance, there are major bureaucratic obstacles when court orders must be processed through several authorities. The report also emphasized that inconsistency and inefficiency in the removal of convicts for court appearances arose from the current legal framework's failure to adequately address the need for a simplified procedure for producing detainees in both civil and criminal courts. Furthermore, it was unclear which court would require an inmate to appear, especially if the inmate was in a different state or jurisdiction. This ambiguity regularly caused confusion and delays.

A number of significant recommendations were made in the Law Commission Report No. 40. It recommended that the inmate production process be simplified to allow for direct court orders without requiring prior permissions and to cut down on bureaucratic red tape. Second, the report suggested establishing explicit guidelines for attendance to guarantee that prisoner testimonies could be gathered promptly. These guidelines would include procedures for issuing commissions to examine witnesses in jail as necessary. In order to speed up the process, the Commission also suggested  removing the counter-signature requirement. They did this by suggesting that inferior judges should be trusted to use their discretion when issuing orders. In conclusion, the report addresses the necessity of better safeguards to preserve inmates' rights, safety, and dignity. These recommendations attempted to provide a more effective, equitable, and humane procedure for managing the appearance of incarcerated inmates as witnesses in court.

• United States of America:

In the US laws and policies pertaining to federal and state proceedings have  regulations controlling the presence of convicts as witnesses in court. If there is a valid court order, the U.S. Marshals comply with the request for the production of federal inmates involved in state civil lawsuits. According to U.S. Marshals Service guidelines, the party interested for the prisoner's testimony has the responsibility for the expenditures related to this production. According to 28 U.S.C. Section 2254, the court may let the costs be deducted from any monetary rewards that come from the case if the prisoner is impoverished.

A writ of habeas corpus may be used to transfer federal convicts in state criminal proceedings to state criminal proceedings to state custody in order to expedite local prosecutions. The U.S. Marshal, however, has the option to grant such petitions, especially if the prisoner is a protected witness, has a serious medical condition, or presents a significant security danger. The Bureau of Prisons Policy Statement , which handles the transportation of prisoners for court appearances favours this choice. Additionally, the U.S. Marshal is in charge of transporting, keeping custody of, and presenting state prisoners in federal court for state prisoners involved in federal criminal cases; however, this may require a waiting period and the state governor's approval in accordance with the Interstate Agreement on Detainers.

• United Kingdom:

The fundamental legislation that governs the process for allowing incarcerated persons from testifying in court in the United Kingdom are those related to the rights of convicts and the responsibilities of prison officers. When prisoners speak with the police about incidents, they are classified as prospective witnesses in criminal proceedings. It is the responsibility of the prison system to protect these witness inmates and make sure they understand their position and the consequences of testifying. The Prison Service Order (PSO) On legal matters concerning prisoner’s states that confidential correspondence about a prisoner's involvement as a witness must be handled, and that inmates must be reminded not to discuss their cases with others in order to safeguard their rights.

The prison warden is responsible for making sure that inmates who are ordered to appear in court are present at the appointed time. The court may assign a commission to gather the prisoner's testimony if they are unable to appear because of illness or for other justifiable reasons. This procedure ensures that a prisoner's evidence can still be taken into consideration even if they are unable to attend in person in court. The Criminal Justice Act of 1967 in the United Kingdom permits the use of written statements in court, which occasionally removes the requirement for a witness to appear in person. A witness statement that is approved by the parties could be read in court instead of requiring the witness’s physical presence.

When comparing India to the United States and the United Kingdom, the key disadvantages include the absence of a streamlined prisoner testimony process, significant logistical difficulties, and inadequate security for prisoner witnesses. Although the United States and the United Kingdom have implemented systems that make it easier for inmates to appear in court, India's system is affected by ineffective bureaucracy and insufficient legal protection. This discrepancy highlights the necessity of reforms in India to protect the rights of witnesses who are incarcerated and guarantee that their testimony can be successfully included into the legal system.

When serving as witnesses in civil disputes, prisoners in India will face numerous challenges in practical and legal aspects. While the Order XVI-A of the Code of Civil Procedure  offers a framework for the same however putting these rules into actions can be difficult and imperial the fairness of the justice system.

One of the biggest challenges is the logistical barriers including safety of witnesses while transfers. Inadequate security staff, overcrowded prisons, and poor transit infrastructure all contribute to irregularities and delays in the execution of court decisions. In addition, the lack of comprehensive risk and minimising strategies may expose witnesses to danger from other threats from other prisoners or outsiders could deter them from providing accurate testimony. 

The discretionary powers awarded upon prison authorities  gives rise to volatile determinations concerning the presence of convicts in court, producing irregularities and impeding the operation of the legal system. Moreover, the issue is worse if prison officers are not given adequate direction or training on their duties.

The government should make investments in enhancing prison facilities, hiring more security guards, and putting in place uniform procedures for the secure transfer of inmates to courts in order to address these issues. The formation of a separate oversight body could aid in keeping an eye on and addressing any abuse of power by jail authorities.  India can improve the attendance of incarcerated inmates as witnesses in civil court cases by resolving these pragmatic and legal obstacles, thereby advancing justice, accountability, and the general integrity of the legal system.

1. Code of Civil Procedure, 1908

2. Prisoners (Attendance in Courts) Act, 1955

3. U.S. Marshals Service guidelines

4. The Prison Service Order

5. The Criminal Justice Act of 1967

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7. The Law Commission Report No. 40.

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11. Human Rights Centre. (2013). Bearing Witness, University of California, Berkeley School of Law.