This article has been written by Prashant Tiwari, pursuing a certificate course in Advanced Criminal Litigation from LawSikho.

It has been published by Rachit Garg.

Introduction

It is an imperative principle of law that a person is innocent until proven guilty. But in reality, the period of trial in our country is so long that, by the time a case is decided and a person is acquitted, the person already undergoes a long period in jail.

Article 21 of the Indian constitution which gives the fundamental right to live with dignity to all persons is a supreme fundamental right. It puts a duty on the state to ensure this fundamental right for every person. But when a person is accused of any crime and if he is put into custody and not granted bail then a delayed trial makes him  stay in jail for a very long period as an under-trial prisoner. Under-trial prisoners are those prisoners who have been kept in judicial custody (in jails) while their trial is going on in court which could  culminate into either conviction (guilty) or acquittal (not guilty). Hon’ble Supreme Court Judgement in  Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, stated that the right to a speedy trial is a fundamental right implicit in  Art. 21 of the Constitution. If an accused is not tried speedily and his case remains pending before the Magistrate or the Sessions Court for an unreasonable length of time, it is clear that his fundamental right to a speedy trial would be violated. 

It is an imperative principle of law that a person is innocent until proven guilty. But in reality, the period of trial in our country is so long that, by the time a case is decided and a person is acquitted, the person already undergoes a long period in jail. Due to this long period in jail, his personality and social existence are seen as that of a criminal. The trauma of being tattooed as a criminal by society remains with the person for the rest of his life. 

Causes of delay in trials

Unleashed arrests, mechanical remand and delay in bail hearings and trials, this loop has flooded our prison with people. The Supreme Court itself recognised this concern in Joginder Kumar v. State of UP, The court has cautioned that arrest should be treated as an exception and not the rule and that just because the police have the power to arrest, does not mean that they should do so in every instance. In 2009, the Parliament amended Section 41 to limit the power of arrest for cognisable offences for which punishment is seven years or less. Section 41(1)(b) of the CrPC  also puts forth mandatory conditions to be satisfied before making arrests.

These conditions include that the police officer should be satisfied that such arrest is necessary to-

 1. Prevent the person from committing any further offence;

 2. for proper investigation of the offence;

 3. To prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner;

 4. To prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the police officer; or 

5. Unless such a person is arrested, his presence in the court whenever required cannot be ensured. The amended section also requires that the police officer records in writing his reasons for making or not making the arrest. 

But this has not been very efficient in curbing unnecessary arrests. It is evident by the fact that during the year 2019, a total of 18, 86, 092 inmates were admitted to various jails in the country. As per the report of NCRB, in 2019, the total number of prisoners was 4.78 lakhs, out of which 3.30 lakhs are undertrial. 

YearTotal PrisonersNo. of ConvictsNo. of Under TrialNo. of detenues.Other Inmates
20174, 50,6961, 39,1493, 08,7182,136693
20184, 66,0841, 39,4883, 23,5372,384675
20194, 78,6601, 44,1253, 30,4873,223765

We can see that every year the number of undertrials is  increasing. It is very important to understand that these are the statistics from 4 years after the judgment of Arnesh Kumar, “where Supreme Court come down heavily upon law enforcement agencies and sought to curb the problem of unnecessary arrests and detention. The hon’ble court had also emphasised that the magistrate should also apply his mind while ordering an arrestee to be detained beyond a 24-hour period as prescribed in Section 167 of the CrPC. The court also mandated departmental action against police officers and magistrates who do not comply with the provisions of Section 41(1)(b) or do not record reasons for authorising arrests or detentions” This shows that a very strong measure is needed to curb this problem and it’s  high time that state did something about it.

Moreover, another significant reason why the trial of criminal cases is delayed is because of the lack of a sufficient number of judges to try the case. Judiciary is heavily burdened. “In the courts of Magistrates and Additional Sessions Judges, there is total inadequacy of judge- strength and lack of satisfactory working conditions for Magistrates and Additional Sessions Judges. There are courts of Magistrates and Additional Sessions Judges where the workload is so heavy that it is just not possible to cope with the workload unless there is an increase in the strength of Magistrates and Additional Sessions Judges. There are instances where appointments of Magistrates and Additional Sessions Judges are held up for years and the courts have to work with depleted strength and this affects the speedy trial of criminal cases. The Magistrates and Additional Sessions Judges are often not provided adequate staff and other facilities which would help improve their disposal of cases.”  

While there have been more than 454 judges’ positions vacant in 25 high courts, the situation is worrisome in the lower judiciary with vacancies of over 5000 judges. The apex court too has 8 vacancies out of total strength of 34 Judges.

 At this date, there are around 58 lakhs pending cases at various high courts and 3.9 crores pending cases at the subordinate judiciary. The Niti Aayog, in a 2018 strategy paper (New India @75), noted that at the current rate of disposal of cases in our courts, it will take more than 324 years to clear the backlog.

But the biggest reason for such a large number of under-trial prisoners is a protected mentality of trial court judges to cancel bails and convict  the accused. This mentality should be changed by judges. Recently, a retiring High Court justice, Justice K.S. Ahluwalia in his retirement speech expressed his dissatisfaction over the protected mentality of trial court judges to cancel bails and convict the accused. Supreme Court also in the Arnesh Kumar judgment commented on the routine manner in which courts remand a person to custody upon the first production. The Supreme Court held that a Magistrate must address the question of whether specific reasons that are prima facie relevant have been recorded for arrest. The court also stated that the magistrate must assess whether the police officer could have reached a reasonable conclusion that any of the conditions mentioned above are attractive.

The Code of Criminal Procedure has been amended to provide some relief to undertrial prisoners, for example, Section 436-A, which states that if a person has already received half of the maximum punishment prescribed for the offence for which he has been charged, he is entitled to be released on bail on personal bond or surety, except in cases of life imprisonment & death. In cases of offences punishable with life imprisonment, this period is 10 years. This section reveals that there are people who are kept under trial for a period as long as 10 years. Furthermore, if the person cannot arrange a bond or surety, then this relief is also avoided for such under-trial prisoners. Thus, a poor person who cannot afford bail will have to rot in jail until the culmination of the trial. 

One such incident has been discussed in the case of  Moti Ram and Ors. v. State of M.P, where the accused who was a poor mason was convicted. The Apex Court had passed a sketchy order, referring it to the Chief Judicial Magistrate to release him on bail, without making any specifications as to sureties, bonds etc. The CJM assumed full authority on the matter and fixed Rs. 10,000 as surety and bond and further refused to allow his brother to become a surety as his property was in the adjoining village. Moti Ram went on appeal once more to the Apex Court and Justice Krishna Iyer condemned the act of the CJM and said that the judges should be more inclined towards bail and not jail.  

Similarly, In Maneka Gandhi v Union of India, Justice Krishna Iyer once again spoke about how unfair and discriminatory the bail system is when looked at from the economic criteria of a person. This discrimination arises even if the amount of bail fixed by the magistrates isn’t high for some, but a large majority of those who are brought before the courts in criminal cases are so poor that they would
find it difficult to furnish bail even if it’s a small amount.    

Extent of undertrial

Do you know how far an undertrial period may go? The longest trial in our country is of 54 years faced by Machal Lalung. He was jailed in 1951 on a charge of causing grievous hurt and was released only on the intervention of the National Human Rights Commission in 2005. He passed away 2 years later. There are many other Machal Lalungs  in our jails who are not lucky to get noticed by Human Rights networks. A poor person in jail doesn’t get a chance to get  a good lawyer. The court appoints a lawyer for those who can’t afford it but in reality, hardly ever do these lawyers take interest in cases of such poor persons and defence becomes a mechanical process left to god’s will. Years of oppressed lives and violation of human rights in jail in the name of the trial have become an accepted Generality. Even a single day in jail is dreadful. The under-trial periods are so long that it is no less than getting punishment like a convict. 

Undertrial must be given a right to vote 

A person who is innocent until proven guilty by the law. Despite this, it denies an undertrial prisoner the right to vote.  The right to vote is an important constitutional right of every person and it should not be taken away by someone merely because a person  is in jail pending trial. Until and unless one is held guilty by the court, he must not be kept away from giving his vote. Section 62(5) of the Representation of People Act of 1951 mandates that “no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police”. Suppose, a person who is in custody is not allowed to vote, however, the same person out on bail is allowed to cast his vote. An undertrial is as innocent as any other respectable person in this country. His guilt is not established yet and by barring him from exercising his right to vote, he is treated like a guilty person. Thus, this provision creates an unreasonable classification and violates article 14 of the Indian Constitution.

It is very important to grant under-trial prisoners the right to vote since our political parties and support groups will start to view them as potential voters, and this will motivate them to support poor under-trial prisoners, who are forgotten in jails for years due to poverty and a lack of voice in society, as Machal Lalung was. Further, they would also ensure that an environment will be created where an under-trial prisoner if he comes out on bail, will be accepted by society. They will try that not only the state but also every member of the society shall imbibe this principle in their minds that “An accused is innocent until proven guilty”.

Solutions

The problems and solutions to the same are known to all but their implementation is not done wisely. Some of the proposed solutions are as follows:

  • Arrest should be made only wherever necessary.
  • Protected mentality of trial court judges to cancel bail and convict the accused should be done away with.
  • There must be a speedy trial and for that, there should be a sufficient number of judges, otherwise we witness how overburdened our judiciary is.
  • Under trial prisoners must be given a right to vote. 
  • On an individual level, we all should endeavour to imbibe in the mind that “An accused is innocent until proven guilty” and thus do not see any person coming from jail with abhorrence. That person may be guilty but that person may also be innocent and if he is innocent he shouldn’t deserve our abhorrence. He may be someone who has spent a dreadful period in jail without any guilt. He may be a victim who needs love, care and acceptance by us.

Conclusion

Speedy justice is a fundamental right, a violation of which undermines a person’s confidence in the judiciary. The cry of prisoners stricken with poverty, illiteracy and lack of resources is a mockery of justice.  The inability of the state to conduct speedy trials  puts unwarranted pressure on undertrial prisoners and their families. For some are the sole breadwinners of the family, for some couldn’t make themselves present during the last days of their parents, delivery of their wives, or even the last rites of their parents. It’s  painful to imagine the plight of such persons. A person who is acquitted leaves jail carrying all the misery he has suffered there, the misery that lives in his mind forever. There is no compensation enough for the misery that is under trial going for several years in jail however, the state should give the best possible compensation.

It’s imperative that the government should set up a committee to review this long-drawn problem and stop only where a panacea is found.


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