The trials and tribulations of undertrial prisoners in India

A prisoner in jail | Pic courtesy: Special arrangement

Mohammad Ali was sent to Taloja jail in Navi Mumbai after he was charged under a few minor sections of the IPC (Indian Penal Code). He spent nearly a month and a half in prison as an undertrial and secured bail on May 7, but he continued to languish in jail for a few more weeks as he was financially unsound. 

“I got the bail on May 7, but due to lack of money, I got released only after a few more weeks. I contacted an NGO, and they paid the money to secure my bail. In the Taloja jail, I have seen several prisoners doing their time and spending two to three years in jail despite getting bail because they don’t have money or can’t find someone who can stand as surety for their release. Often, money or some person’s paying power decides how long they will be in jail. It is not dependent on a fair trial or the offence they have committed,” says Ali. 

Ali’s case is not an isolated incident. Indian jails are crammed with undertrials whose pleas are rarely heard. According to the Prison Statistics India report of the National Crime Records Bureau, three out of four prisoners in Indian jails are undertrials. As per the latest data, out of the 4,88,511 Indian prison inmates, 3,71,848 were undertrials. A large majority of the undertrial prisoners belong to the minority community. According to the government, among undertrials, about 20% were Muslims, while 73% were Dalits, tribals or OBCs.

“Our jails are filled with undertrials who belong to the minority community and are from the society’s lower strata. Speedy and fair trial is a constitutional guarantee, and we as a system have failed in giving that constitutional guarantee to these prisoners. People who belong to the minority community or oppressed classes become the victims of this systemic failure. SCs, OBCs and minorities constitute almost 92 per cent of the undertrials. Many of these people are punished before the actual commission of the offences. Caste also plays a huge role. In the judiciary, almost 90% of the judges belong to the upper caste. Even among the lawyer community, almost 75 per cent are from the upper caste,” says senior advocate Mehmood Pracha.

Recently, while addressing a joint conference of chief ministers and chief justices of high courts, Prime Minister Narendra Modi batted for reforms related to undertrial prisoners. The PM spoke about how bail must be granted to undertrials, and he asked the judiciary to set up district-level committees headed by district judges to give bails to them. That apart, he advocated using the local language in courts to make justice not just accessible but comprehensible to the prisoner. However, many of these reforms are yet to be implemented. 

Hafsa Khan Sarguroh, a member of the Women’s Welfare Committee at Global Care Foundation - an organisation that focuses on non-habitual undertrials - argues that it is not just the language of communication in courts, but there must be a great emphasis on legal awareness too. 

“We only help those accused who are petty offenders and first-time accused. Habitual offenders are beyond our purview. We understand that non-habitual offenders need support, so we lend them a helping hand. Most of these undertrials suffer because there is no awareness of the laws. They have limited knowledge of their rights. We were dealing with a case where the person in jail had a 15,000 cash bail, and there was no one outside to pay for him. He wrote an application to the court asking them to reduce the amount and that he would pay it through the salary he would get while working in the jail. The court reduced it to 7500. But he couldn’t pay 7500 rupees either because, as you know, the wages in jail are very low. So, he wrote another application to the superintendent and the court saying that he had so far earned 3700 rupees as wages in jail and to kindly consider granting him bail at a lesser amount and then he was granted bail for that amount. Most undertrials lack this knowledge. They don’t get guidance. This is a huge issue.”

Sudhanshu S Pandey, who has dealt with several cases related to undertrials, says the problem is more profound. Poverty and social isolation make the undertrials’ lives miserable. 

“I had worked in a project related to Tihar where I found that people who have been granted bail are still languishing in the jail because they do not have the capacity to arrange for the surety. The purpose of surety is not related to the amount of surety, and it is that someone has to stand as surety and vouch for the person. But for the person from the lower strata of society, no one stands as a surety. So, this is a grave situation. On the one hand, the Supreme Court says that bail and not jail should be the motto because individual liberty is a critical aspect of a citizen’s life, and on the other hand, because of the mounting number of cases in the country, the judges do not have time to hear the pleas of the undertrials who want relief and justice.”

Article 21 of the constitution states that no person shall be deprived of his life or liberty except by the due process of law yet the NCRB data shows a steady increase in the number of prisoners dying in prisons across the country awaiting their trial. 

“The situation is such that we don’t give any importance to personal liberties. There have been cases where a person was supposed to be in jail only for one year but ended up being in jail for four years. All stakeholders must get together to solve this issue. Media also plays a huge role. The executive legislature and the judiciary should be involved in finding the solution. Only then can we strengthen the criminal justice system. We constantly talk about the presumption of innocence, benefit of doubt, burden of proof, but this can’t be just limited to the books. These principles must be executed in letter and spirit,” asserts Pandey. 

The Arnesh Kumar vs State of Bihar judgement of 2014 states: “The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, CrPC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied.” The judgement emphasised that the investigative agencies must comply with the mandate of Section 41 and 41A of the CrPC. 

Highlights of the Arnesh Kumar vs State of Bihar judgement 

All the State Governments to instruct their police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down under Section 41 CrPC. 

The police officer shall furnish the reasons and materials which necessitated the arrest while producing the accused before the Magistrate for further detention.

The Magistrate, while authorising detention of the accused, shall peruse the report furnished by the police officer, and only after recording its satisfaction, the Magistrate will authorise detention. 

The decision not to arrest an accused be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate, which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing

Notice of appearance in terms of Section 41A of CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing.

The directions aforesaid shall not only apply to the cases under Section 498-A of the IPC or Section 4 of the Dowry Prohibition Act but also such cases where the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

Failure to comply with the directions shall, apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

This radical judgement made both the judiciary and the law enforcement agencies accountable. A copy of this judgement was sent to the Chief Secretaries, DGPs of all States and Union Territories and to the Registrar General of all High Courts to ensure compliance. “On paper, a large number of judgements are there, like the Arnesh Kumar judgement where the action is mandated not only against erring police officials but also against the magistrates, but this is not being implemented. There is a lack of will in implementing the cardinal principle of bail, not jail and speedy trial policies,” rues Pracha.

The very first words of the preamble to the Constitution of India make it clear that the political power in the Sovereign, Democratic Republic of India is derived from the people, and the aim of the constitution is to secure for all its citizens justice - social, economic and political; liberty of thought, expression, belief and worship; equality of status and opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity of the nation. Yet delayed trials, lack of a fair hearing or facilities for prisoners who belong to socially and economically weaker sections, crammed jails and human rights violations often defeat the principle of “justice to all” in our judicial system. 

“I really feel that there is so much powerplay involved here. In India, we don’t take economic offences seriously, and most of these offences are committed by people who belong to upper castes and are rich, influential or powerful. Most often, poor and underprivileged people are falsely implicated, and they end up in prison for a very long time. They stay longer in jail, not because of the offence they committed but because they don’t have the social or financial means to get out of prison. The organisations like the National Legal Services Authority, whose purpose is to provide free legal services and help people, have failed to provide large-scale relief to the undertrials,” notes Pracha. 

Ali, who spent his time in jail as an undertrial prisoner, says even basic human rights are violated inside prisons. “When I was in Taloja jail, we didn’t even get water regularly for taking a shower. There were many prisoners in a single room, so we had to sleep very close to each other. There was absolutely no space between the prisoners when they went to bed. A barrack that has a capacity of 35 inmates will house 70 prisoners at least, and sometimes this would rise to 80 prisoners. Apart from that, prisoners are often harassed by police for no reason. The water problem within the jail was so huge that we would get only one bucket for bathing, drinking, and everything else. How do you expect a human being to survive with dignity in such conditions?”

Subhash Chander, who was a Superintendent of the Tihar Jail, says human rights is a huge issue and must be addressed across the jails in India.

“The new person who gets into jail gets dominated and harassed. There is gang rivalry. We try to keep undertrials in separate wards, but even then, there are many human rights violations that take place in our jails. Section 436-A of CrPC speaks about the provisions in which an undertrial can be released. When a prisoner could end up getting imprisonment of up to 7 years under a section, he can be released within three and a half years but usually, what happens is that the undertrial has to pay some amount and also give surety but because he is from a poor background he cannot do both. Sometimes we approach NGOs and get the surety or other formalities done, but the numbers of undertrials are more. We need more NGOs, well-meaning individuals and the system to come forward and provide relief to undertrials who need help.”

In the Hussainara Khatoon & Ors vs Home Secretary, State of Bihar judgement, the judges noted: “We find from the lists of undertrial prisoners filed before us on behalf of the State of Bihar that the undertrial prisoners whose names are set out in the chart filed by Mrs Hingorani today have been in jail for periods longer than the maximum term for which they could have been sentenced; if convicted. This discloses a shocking state of affairs and betrays a complete lack of concern for human values. It exposes the callousness of our legal and judicial system which can remain unmoved by such enormous misery and suffering resulting from totally unjustified deprivation of personal liberty.”

Several developed countries have enacted stringent laws that make the State pay compensation if there is a miscarriage of justice. Article 14 (6) of the International Covenant on Civil and Political Rights (ICCPR) states: “When a person has by a final decision been convicted of a criminal offence, and when subsequently his conviction has been reversed, or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.” But India is yet to comply with these legal provisions. 

Many undertrials in India doing their time in prisons are wrongly confined on faulty or fabricated charges. Thousands of these prisoners are presumably innocent and are in jail because they are only accused of a crime that is still not proven in a court of law. Yet they end up spending years in jail; some spend more time than the actual maximum imprisonment term for the crime they have been accused of committing. Many of them languish years together in jails before the trial court even starts hearing their cases, and most often, the courts are mute spectators to such delayed trials. 

The problems of undertrial prisoners in India are the result of a collective state failure. These are people who are stigmatised; their pleas are seldom heard, their voices often suppressed, and their lives are spent in dark, overcrowded prisons for not the crime they have committed but because the justice delivery system is languid and lethargic.