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Scat Laboy
Six of every 10 of India's prisoners languishing in jails across the country are undertrials: their cases have yet to be tried, and they are spending more time in jail than they would have, if convicted. The slow march to justice for undertrials must be seen in the context of a criminal justice system in need of an overhaul. This paper examines the plight of the country's undertrials and recommends ways to move forward.
NALSAR University of Law is recruiting personnel for its Access to Justice Program for Undertrial Prisoners, established in collaboration with the Azim Premji Foundation. The program aims to provide legal aid to undertrial prisoners, focusing on those facing vulnerabilities such as poverty, marginalized communities, illiteracy, and informal sector employment. Its goal is to address social, economic, and legal issues hindering prisoners' freedom by working with advocates, social workers, students, and program lawyers. The program involves identifying prisoners in need, appointing advocates, conducting visits, and addressing prosecution delays. It aligns with the legal aid system, emphasizes bail jurisprudence, and collaborates with the Prison Legal Clinic. The objective is to assist 1500 prisoners within three years.
The University is hiring for various positions and encourages individuals from marginalized backgrounds to apply. Interested candidates should submit their applications with supporting documents of qualifications and experiences by January 31, 2024.
Mumbai: Over the past decade, Indian prisons have increasingly had more undertrial prisoners, with their share increasing from 66% of prisoners in 2012 to 76% in 2022, as revealed in the latest Prison Statistics India report released by the National Crime Records Bureau. While this figure rose each year, the greatest rise was seen in the pandemic year of 2020, when undertrial prisoner share rose from 69% to 76%.
A primary contributing factor to this trend is the indiscriminate arrests carried out by the police, often without proper consideration, as IndiaSpend reported in August 2022. Individuals belonging to marginalised communities are disproportionately impacted from these unwarranted detentions. Other factors such as limited access to legal assistance and difficulties in meeting bail conditions contribute to the heightened likelihood of underprivileged individuals spending time in prison without being convicted.
To throw light on this issue better, IndiaSpend is launching PrisonWatch, a comprehensive portal that aggregates prison statistics data concerning undertrial inmates in India, spanning the last 25 years since 1997, when the first compilation of detailed prison statistics was released by the NCRB. The primary objective is to analyse patterns within the growing undertrial inmate population and identify trends across states over the years. The compiled data include demographic information, age, duration of confinement, and the nature of the crimes involved.
Experts believe the longstanding problem cannot be solved without police and jail reforms. They say there is an urgent need to redress issues of an understaffed and overworked judiciary, strengthening district legal service authorities, and most importantly, introducing substitutes for money or property-based bail systems in Indian courts.
As per the National Crime Records Bureau, prison overcrowding in 2019 was the highest in the past 10 years. Prison Statistics India report 2021 revealed that the number of convicts in jails decreased by 9.5 per cent, whereas the number of undertrial inmates increased by 45.8 per cent between 2016 and 2021.
A combination of factors such as poverty and illiteracy, not understanding the language of the court, ignorance of the law, and ineffective or absent legal representation render the prisoners helpless.
The share of inmates belonging to marginalised communities did not reduce. Two in three undertrial inmates belonged to either Scheduled Caste, Scheduled Tribe or Other Backward Classes in 2020 as well. People from these communities are vulnerable to illegal detentions, false confessional statements and arrests and they often have no means to seek bail, our September 2020 report found.
Delhi and Jammu and Kashmir reported the highest share of undertrial inmates of the total prison inmates, followed by Bihar, Punjab and Odisha and Maharashtra. Of these, Delhi, Jammu & Kashmir, Bihar and Maharashtra also reported an occupancy rate of over 100%.
Two in three prisoners under trial belong to Scheduled Castes, Scheduled Tribes or Other Backward Class groups, data show. Two in five undertrial inmates were educated below Class 10 and more than a quarter were illiterate. Caste prejudices and over-policing of certain communities are important social factors behind the significant presence of marginalised caste groups in jails, our September 2020 report had found.
In 2020, there were 1,291 undertrial prisoners who had been in jail for a period of more than half the sentence for the accused offences cumulatively. Section 436A of the Code of Criminal Procedure allows for the release of are eligible for release on personal bond. However, only 442 such prisoners (34%) were released in 2020.
Of the states which had over 10,000 inmates, Tamil Nadu, Bihar and Punjab are the only states where over 80% of the undertrials had spent less than a year in prison. Maharashtra had the highest percentage of undertrials in confinement for over a year (40%) followed by Gujarat (36%).
A person under police custody will be held at the police station in the physical custody of police officers. Under judicial custody, they will be in the custody of a Magistrate in a jail. Undertrial prisoners are under judicial and not police custody.
As per section 436-A of the Code of Criminal Procedure, 1973, an undertrial prisoner who is not accused of an offence punishable with life imprisonment or death should be released if they have been detained for half the period of imprisonment prescribed for the offence.
Denying bail to an undertrial with a critical health condition would amount to a death sentence, the Gujarat High Court said on Monday while granting bail to a 69-year-old murder accused suffering from a rare disease, Bar and Bench reported.
The judge also noted that during the short span of incarceration, the petitioner named Jafar Sadrudin Dargahwala was to be taken to several hospitals within Gujarat and also in Mumbai, Maharashtra for treatment.
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Following the liquor ban in Bihar in 2016, many people from Dalit and Adivasi backgrounds were arrested under the prohibition law. A majority of them were behind bars under exaggerated charges or because of procedural lapses by visiting legal aid lawyers. Most of the undertrials are unable to get released on bail due to their inability to produce suitable sureties or pay the bail amount. There is an urgent need for sociolegal intervention with undertrial prisoners towards ensuring their legal rights.
The situation of undertrials languishing in prisons continues to be a cause for serious concern in India. Despite various initiatives to address the situation, little has changed on the ground. If anything, their numbers have gone up in recent years, notwithstanding frequent directives from the Ministry of Home Affairs to prison authorities and the Supreme Courts judgment in 2014 that held that undertrials can be released on bail on personal bonds provided half of the maximum period of sentence has already been spent inside the jail (Hindu 2015).
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1) The arrest of a person is justified as 'necessarry,' if the police have reasons to believe that it is required to ensure their presence in court. Such vague justifications can and does lead to arbitrary arrests, putting marginalised people most at risk.
The data is worrying, not only from 2022, but consistently over the years. A reading of the number of undertrial prisoners from marginalised castes over the last five years (2017 - 2021) suggests a whopping 48 percent jump.
Offences and length of detention The excessive length of undertrial detention has been a subject of judicial, media and civil society concern. Section 436A was introduced into the CrPC in 2005 to mandatorily release on bail all undertrials who have already served half the period of their sentence if convicted. The Supreme Court, in its recent order, and civil society groups have invoked Section 436A of the CrPC as the primary strategy to reduce the undertrial population. This strategy would work if undertrials are in fact detained for inordinately long periods of time.
Profile data Irrespective of the length of undertrial detention, the core of the undertrial problem may be its disparate social, economic and religious impact. While existing data sources are inadequate, our preliminary research suggests that the illiterate, lower castes and members of religious minorities are over-represented in the undertrial population. In 2012, close to 74 per cent was either illiterate (30 per cent of the undertrial population but only 18 per cent of the Indian population) or had studied below Class 10 (43.3 per cent of the undertrial population). Similarly, Muslims (21 per cent/14 per cent), Scheduled Castes (22.4 per cent/16.2 per cent), Scheduled Tribes (13.3 per cent/8.2 per cent) are over-represented. In order to show that this is a deliberate or structural result of the prosecution or bail process, we need access to the profile of those arrested. This data is currently unavailable. Nevertheless, a policy response that assumes that the disproportionate numbers of socially and economically disadvantaged people are subject to unnecessary undertrial detention calls for a focussed Centrally sponsored public defender programme to replace the ham-handed legal aid services currently administered.
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