Need for criminal justice reforms, a case to protect the rights of undertrial prisoners.
According to World Prison Brief, India has the 7th highest percentage of pre-trial prisoners in the world. The six nations that do the worst relative to India are Bangladesh, Liechtenstein, San Marino, Haiti, Central African Republic, and Gabon. The core doctrine of jurisprudence abides by the concept of “Innocent until proven guilty” i.e someone shall not be considered guilty of an offence until and unless they are proven to be guilty by the competent court. In India and in many other countries, the rich elite and other privileged communities readily and adequately get to witness the applicability of this doctrine in their cases. But that is not the case with the majority of the population. As of 2022, about 75 percent of the prison population is “undertrial” while more than 65 percent of undertrial prisoners in India belong to the Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Castes (OBC). They have not yet been convicted of the charges for which they have been detained, and are facing trials for prolonged periods with the normalized (for quite many years now) ‘tarik-pe-tarik’ effect. These people are presumed to be innocent for all legal purposes yet remain in jail. What is baffling is that some of these people end up staying in jail for a much longer period compared to the eventuality of their actual conviction for the same charges.
"A nation should not be judged by how it treats its highest citizens, but its lowest ones" - Nelson Mandela
Notable Examples
Thousands of heartbreaking tales depict individuals who lost their precious life in the labyrinth of the legal system in addition to enduring physical and psychological torment and often facing all forms of brutality not just from police but from fellow inmates too behind bars. A few of them are
In 1979, K.F. Rustomji, a Member of the National Police Commission, penned two articles in The Indian Express (Delhi Edition) detailing the plight of undertrial prisoners in Patna and Muzaffarpur jails in Bihar. According to Rustomji, out of 1000 inmates in Muzaffarpur jail, 700 were undertrials, with 42 awaiting trial for over 5 years. He recounted the story of a 7-year-old child who had spent the last 5 years in prison with his undertrial mother. Rustomji's tour notes to the central government highlighted that the undertrials languished in these jails not due to their crimes but because of poverty (Hingorani 2000).
Machang Lalung, arrested in 1951 in his village Silsang (Assam) on a charge of "causing grievous hurt," is another poignant example. Lalung remained an undertrial for 54 years. Though the offence typically warranted a 10-year sentence, authorities failed to find evidence within a year, subsequently transferring him to a psychiatric institution. Despite being deemed fully-fit by the institution’s psychiatry experts, Lalung was not released. Subsequently, he was transferred to another jail, gradually fading from the memory of his family and relatives. Human rights activists took up his case, which eventually reached the NHRC. In 2006, the Supreme Court awarded him Rs. 3,00,000/- as compensation along with a token amount of ₹ 1,000/- as monthly payment.
In 1996, Mohammad Ali Bhat, a 25-year-old shawl trader from Kashmir, was forcibly taken by a Delhi Police team from Kathmandu, Nepal. He was implicated in the Lajpat Nagar blast case upon arrival in Delhi, and later accused in the Samlethi blast case in Rajasthan. Consequently, he endured years of imprisonment in Delhi and Rajasthan. However, on July 22 of 2022, the Rajasthan High Court exonerated Bhat, declaring him innocent. At the age of 48, he was deemed "not guilty," having lost 23 valuable years of his life due to the sluggish justice system in India. (Rawat,2022)
Current Scenario
Prisons/persons detained therein come under the State List of the Seventh Schedule to the Constitution of India. Administration and management of prisons and prisoners is the responsibility of respective State Governments. The Supreme Court in February, 2023 has instructed the National Legal Services Authorities (NLSA) to collaborate with state authorities and the home ministry to establish undertrial review committees across all districts of India. These committees comprising the District Judge, the District Magistrate, and the Superintendent of Police, were tasked with the evaluation and submission of recommendations for the release of undertrial prisoners eligible under Section 436A of the Criminal Procedure Code (CrPC).
Despite efforts such as the implementation of fast-track courts and the digitization of court records, the number of undertrial prisoners remains high. Undertrial detainees in Indian prisons are currently housed alongside convicted prisoners. However, it is now mandatory for prison authorities to ensure separate accommodation for them.
Model Prison Manual – A minor respite!
The Model Prison Manual, developed in 1960 contains a set of guiding principles for prison management in India. The manual has been revised twice – in 2003 and in 2016. The Model Prison Manual 2016 was circulated to all States and Union Territories for guidance, implementation and feedback. For the first time, it provided a dedicated chapter on “Undertrial Prisoners” comprising detailed guidelines on the various facilities that are to be extended to them. It also stipulates that convicted prisoners should not be housed with undertrials or permitted to have contact with them. The health hazards within prisons are a significant concern, given the extremely inadequate medical care provided to inmates. Another troubling issue is the prevalence of bribery among prison staff. Despite regulations against discrimination, numerous cases of bias within prisons have been reported. As prisons are managed by individual states, there are allegations that wealthy and influential politicians have installed amenities such as televisions and air conditioners in prisons, indicating preferential treatment. This starkly portrays the role of political influence in the criminal justice system and the bias it tends to create. Reasons for detaining undertrials in jail include allegations of serious offences, concerns about the accused interfering with witnesses or obstructing justice, and the possibility of the accused committing further offences or failing to appear for trial. Hence the prisons are to be a place of reformation to the perpetrators. A chance to reform, amend through detention and rigorous isolation from family. However, the possibilities of self-reformation are bleak in such deplorable conditions. Despite the setting up of committees and introduction of various policies, it is also important to ensure effective implementation of the said policies.
The way forward
Prolonged undertrial detention leads to several concerns, according to Amnesty International (2017). Such detention can violate the rights to liberty and fair trial, and also adversely impact the quality of lives and livelihood of those incarcerated. Prolonged undertrial detention also increased the risk of torture or other ill-treatment. According to data from the National Judicial Data Grid, India's lower courts currently have over 41 million cases, while the high courts have just under six million cases. A significant majority, approximately 63% in lower courts and 77% in high courts, have been pending for over a year. A substantial portion, around 23.6%, of cases in lower courts have been ongoing for more than five years, with thousands stretching over decades.
For individuals from marginalised communities, navigating the legal system presents significant challenges. Limited awareness, lack of legal knowledge, and inadequate access to appropriate legal support and resources often result in prolonged detention, surpassing the prescribed penalties for their alleged offences. Article 39A “provides for free legal aid to those who cannot afford it on their own” must be ensured as most of the prisoners belong to the marginalised communities and are mostly uneducated, hence they are also unaware of their rights. Moreover, pre-trial detention must be minimal and situationally justifiable to each individual case otherwise the authorities stand in breach of their duties, violating the fundamental rights of the undertrial prisoner under Article 21. Accelerating the digitization of court records and adopting technology-driven solutions can streamline administrative processes, reduce paperwork, and expedite case hearings, leading to faster resolution of cases.
The recently unveiled Bharatiya Nyaya Sanhita (BNS) and Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) together address the administrative issues that are driving the delays in trial process but they are not sufficient. The notion of categorising an individual as an 'undertrial prisoner' raises questions particularly in case of the governments targeting their critics and to quell the voice of the dissent. The treatment of undertrial prisoners represents a significant violation of human rights that has yet to be adequately addressed. Consequently, there is a pressing need for substantial reforms in India's investigation and trial procedures, with the overarching goal of reinstating trust in the Indian justice system. Concerted efforts by the different concerned agencies of the criminal justice system i.e the judiciary, the law enforcement and the defence lawyers is indispensable in order to ensure the efficacy of the system towards delivering justice to the undertrial prisoners.
This article has been authored by Hirak Roy Chowdhury, a Public Policy Research Intern at CRFHGR.
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