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Under Trial Prisoners in India: Long Wait for Justice

Article  in  Economic and political weekly · January 2016

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Undertrial Prisoners in India
Long Wait for Justice
Vijay Raghavan
Across the world, prisons are
increasingly used as instruments
of social control. With its huge
undertrial population in jails,
India is headed in the same
direction. Measures like restricting
visitors’ access to prisons only
aggravate the situation.
Vijay Raghavan (vijay.r@tiss.edu) teaches at
the School of Social Work, Tata Institute of
Social Sciences, Mumbai.
Economic & Political Weekly EPW JANUARY 23, 2016
T
he Indian reality of prisons is a
picture of jails overflowing with
undertrial prisoners, most of whom
are from poor and marginalised com-
munities. Thousands of them continue
to languish in prisons despite landmark
judgments by the Supreme Court and
various high courts.
Many of them are in prison for petty
and minor offences and are unable to avail
of bail due to a lack of suitable sureties or
an inability to pay cash bail. The 2015
judgment of the Supreme Court by the
two-judge bench of Justices Madan Lokur
and U U Lalit to immediately release
undertrial prisoners who have completed
half the period of the maximum possible
sentence on a Personal Recognizance (PR)
Bond, is a reiteration of the earlier judg-
ment of the apex court in September 2014
which passed the same directions. The
Court has directed the National Legal Ser-
vices Authorities (NALSA) to coordinate
with state authorities and the home min-
istry to ensure that state undertrial re-
view committees are established in every
district within a month. These must con-
sider release of undertrial prisoners enti-
tled to the benefit of Section 436A of the
Criminal Procedure Code (CrPC).
Efforts to decongest Indian prisons and
reduce the undertrial population have been
ongoing for more than two decades. It is
pertinent to note that despite initiatives
like setting up fast track courts, providing
infrastructure grants under the moderni-
sation of the prisons scheme, digitisation of
court records, and writing to state govern-
ments to monitor the release of undertrial
vol lI no 4
COMMENTARY
prisoners on personal bond, which have
been undertaken by successive govern-
ments,1 the number of undertrial prison-
ers in the country’s prisons continues to
hover around 65% of the total prison
population.2
Three Key Issues
A deeper analysis of the situation is
therefore required to address the problem.
There are three key Issues that need to
be dealt with. The first is the lack of
quality legal aid services for undertrial
prisoners who cannot afford the services
of good lawyers to defend themselves in
court. While the state does provide free
legal aid services to needy persons
through the district and taluka legal ser-
vices authorities, often the quality and
consistency of these services are ques-
tionable. There are too many complaints
against these lawyers about irregular
appearances in courts, lack of communi-
cation with their clients about the status
of their cases and, most importantly, the
poor defence put up by them at the bail
and trial stages. The main reason behind
these complaints is the very poor hono-
rarium paid to the legal aid lawyers.
The second issue affecting the situa-
tion is the financial system of bail that
exists in our country. This means that an
accused has to deposit the bail amount
in the court till the end of the trial in
case of cash bail, or produce a surety who
can prove that he can pay the bail amount
specified in the bail order in case the ac-
cused absconds. This implies that if a
person is poor and cannot pay the cash
bail or produce a surety, he/she will con-
tinue to languish in prison till the trial
ends. The PR Bond is meant for such
undertrials. This has been reiterated by
the apex court in various landmark judg-
ments and has been cemented by the
amendment in CrPC under Sections 436
and 436A.
17
COMMENTARY
Importance of Section 436 Cases
Section 436 specifies that if an undertrial
arrested in minor offences continues to
languish in prison for more than a week
after his bail order has been passed, he/
she can be assumed to be indigent and
therefore shall be released on a PR Bond
by the trial court.
Section 436A specifies that in serious
offences, if the undertrial has completed
more than 50% of the maximum sentence
that can be awarded to him/her under
the section for which he/she has been
charged, he/she shall be released on a
PR Bond by the trial court. It is under these
sections that the Supreme Court has passed
orders to release as many undertrial
prisoners who are eligible to be released
and has asked high courts and NALSA to
monitor the situation on a regular basis.
However, the apex court orders have
laid greater emphasis on Section 436A
rather than on Section 436. Thanks to
the continued focus on the situation of
undertrial prisoners across the country,
it is likely that cases of Section 436A, that
is, undertrials languishing in prisons for
more than half the maximum sentence
possible, are very few in number. We may
have a far greater number of prisoners
languishing in prisons for less serious
offences who can be released on a PR Bond
under Section 436. The courts are not
paying adequate attention to Section 436
cases, and hence the number of under-
trial prisoners continues to remain more
or less the same.
The third issue at stake is the long
time taken to complete the trial process.
This, in turn, is related, in more ways than
one, to the very poor judge–population
ratio in India, which stands at 14 judges
per million population, as compared to
between 35 and 50 judges per million
population in most advanced countries.
The idea of fast track courts was an ad hoc
attempt to increase the judge–population
ratio by setting up additional courts on a
temporary basis to hear cases at the ses-
sions courts level by appointing judges
on a contract basis. While the pendency
of cases at the sessions courts level has
come down substantially in the last decade
because of this innovation, it has come
at the cost of what some say, justice per se.
The emphasis of these courts has been
18
more on speedy disposal of cases rather
than on “due process.” It has been seen
that these fast track courts have substan-
tially higher conviction rates compared
to the regular courts, despite the fact
that the legal process adopted is the same
in both courts. Defence lawyers allege
that the judges are in a hurry to finish
the trial in fast track courts and often
give a go-by to the adage of proving a
case beyond reasonable doubt.
If we are serious about reducing the
pendency of cases in our courts, we will
have to increase our judge–population
ratio substantially and alongside bolster
the court infrastructure and additional
human resources needed for courts to
function effectively. These measures
have to be accompanied by other meas-
ures such as decriminalisation of minor
offences, using the provision of arrest by
the police with greater discretion, imple-
menting the provision of the police grant-
ing bail in bailable offences while the
undertrial is in police custody and com-
puterisation of the criminal justice process,
timely provision of police escorts to take
undertrials to courts on their court dates.
Other measures needed include imple-
mentation of the Probation of Offenders
Act which provides for releasing the
offender in less serious offences back to
the community on a “bond of good
behaviour” or under the supervision of a
probation officer for a fixed period of time
(usually between one and three years),
instead of sending the person to prison.
Fingerprint Database?
The Ministry of Home Affairs (MHA) has
reportedly decided to establish a nation-
al fingerprint database of convicts and
those arrested for criminal offences by
collating records from all the states,
according to a report published in the
Economic Times on 16 August 2015. While
this move is projected to improve crime
detection methods, one needs to look at
issues relating to protection of the legal
rights of prisoners, particularly in the case
of undertrial prisoners. This move runs
contrary to the principle of Indian legal
jurisprudence whereby persons arrested
for alleged commission of offences are
considered innocent until proven guilty.
Such a move can also lead to the police
JANUARY 23, 2016
framing persons who have been arrested
earlier in cases where they are not other-
wise able to find evidence. It is very
important that we do not lump all cate-
gories of prisoners in the same basket of
“dangerous criminals.” There is a need to
disaggregate the sub-categories within the
prison population and address the issues
based on the disaggregation of data.
This move comes close on the heels of
guidelines issued by the MHA on 24 July
2015 for prison visitors—individuals,
press, NGOs or companies, whereby it
severely restricts the entry of visitors.3
These guidelines are an indication of the
deep suspicion and mistrust between
the state and civil society organisations,
leading to executive overreach that has
become characteristic of neo-liberal gov-
ernments across the world.
Controlling the ‘Unruly Class’
These steps seem to fall in line with the
neo-liberal regime that promotes restric-
tive “workfare” for the deserving poor
and expansive “prisonfare” for the unde-
serving poor, who constitute the vast
majority of the “urban outcasts,” accord-
ing to Lois Wacquant (2010). As the gap
between the rich and the poor widens
under neo-liberalism, prisons and custo-
dial institutions become a powerful tool
in the hands of the state to control the
“unruly classes,” who are a threat to sta-
tus quo and the neo-liberal social order.
Chambliss (1964), in his article about
the birth and growth of vagrancy laws in
the United Kingdom, highlights the fact
that the vagrancy laws were first enacted
to prevent the rural–urban movement of
labour from the feudal-agricultural
to capitalist-industrial complex, due to
shortage of agricultural labour owing to
the plague epidemic in 17th century Eng-
land. Later, as feudalism gave way to
capitalism, the same laws were tweaked
to sedentarise and custodialise the
homeless and unruly classes in urban
spaces, who were viewed as a threat to
the capitalist social order. Across the
world, prisons are increasingly used as
instruments of social control, which are
aided by the enactment of harsh laws.
These laws derive their legitimacy from
the spectre of rising and brutal crimes
which the state and mass media hold as
vol lI no 4 EPW Economic & Political Weekly

a mirror to an increasingly confused and
fearful citizenry.
In my opinion, curtailing the entry and
involvement of civil society organisations
and academic institutions into our prisons
would be detrimental to improving the
situation of prisoners in the country. Suc-
cessful experiments have been conducted
by law colleges in the past to involve
students in providing legal guidance to
undertrials and other sections of the
needy population. Para-legal workers
can make regular visits to prisons and
identify cases which can be released on
a PR Bond under Section 436 or 436A.
NGOs with socio-legal expertise can be
encouraged to work in prisons and a
grant-in-aid scheme can be started by the
government to provide financial support
to such organisations, which can pro-
vide regular and systematic services to
Economic & Political Weekly EPW JANUARY 23, 2016
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undertrial prisoners, families of prison-
ers and released prisoners. Last, and per-
haps most important, the prison depart-
ments should create a cadre of trained so-
cial workers to work with prisoners,
families of prisoners and released pris-
oners towards promoting their legal rights
and rehabilitation. These measures will
go a long way in addressing the decades-
long issue of undertrial prisoners lan-
guishing in the prisons of our country.
Notes
1 Under the 1999–2004 National Democratic
Alliance (NDA) regime, the United Progressive
Alliance (UPA) governments I and II and the
present NDA government.
2 As per the Prison Statistics India Report 2013,
the percentage of undertrial prisoners in the
country is 67.6%.
3 The guidelines state that “no private individual/
Press/NGO/Company should ordinarily be
allowed entry into the prison for the purposes of
doing research, making documentaries, writing
articles or interviews etc.” These guidelines are
vol lI no 4
COMMENTARY
applicable to all the visitors, whether foreigner
or Indian including individuals, companies, press,
researchers, film-makers. The guidelines however
add that the state governments may give permis-
sion to prison visitors if their work is “for the pur-
poses of creating positive social impact, or relat-
ing to prison reforms, or if the State/UT Govern-
ment itself decides to invite press/filmmakers
to cover a particular event”. Among the various
conditions laid down to restrict the entry of pris-
on visitors, the guidelines specify that “the visitor
shall also submit a Security Deposit of Rs 1 lakh
by way of a Demand Draft/local Bankers’ Cheque
in the name of the Jail Superintendent of the
concerned jail. However, the State Govern-
ment/UT Administrations may dispense with
or modify this requirement in case of research
studies undertaken by students”. The guidelines
provide for forfeiture of the security deposit
amount in case a prison visitor violates any of
the conditions specified in the guidelines.
References
Chambliss, W J (1964): “Sociological Analysis of
Vagrancy,” Social Problems, Vol 12(1), pp 67–77,
DOI: 10.1525/sp.1964.12.1.03a00070.
Wacquant, L (2010): “Crafting the Neoliberal State:
Workfare, Prisonfare and Social Insecurity,”
Sociological Forum, Vol 25(2), June, pp 197–
220, DOI: 0.1111/j.1573-7861.2010.01173.x.
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