This article has been written by Tanisha Mishra, a student of the National Law University and Judicial Academy Assam.
In a hypothetical scenario, a person is caught up in a situation where there are circumstantial evidences against him committing an offence which leads to his arrest. He is taken to the prison when he is yet to be proved as guilty by the court, consumed by the terrifying thought of getting convicted, on the top of it the harsh brutal prison life that awaits him. Not even close, but this is how the under trials feel. According to Prison Statistics India 2015 released by National Crime Records Bureau (NCRB), 67% of the total prisoners in India amount to under-trials which is two-third of prison population or 2.8 lakh Indians. India also holds the record of having the third most under trials in prison in Asia and ranks 18th around the world.
India has the longest constitution in the world committed to safeguard each and every one’s interests and rights including prisoners. Also IPC, CrPC and other statutory legislations like the Prison Act, 1894 and the Prisoners Act 1900 including supreme court’s precedents have laid down exhaustive and explicit provisions for the under trials. Nonetheless, due to ineffective and inadequate implementation the under trials are deprived of the basic human rights and more importantly the right to timely justice.
Life in prison
The condition of under trials is pathetic behind the bars. Jail is not a place we go every day, it drives people crazy. The whole set-up is dehumanizing, deprived of every basic human right. Jails in India are overcrowded, food available is not edible, beds and bunks do not meet the required standards, and prisoners are housed in less ventilated dark rooms. A small dingy cell house with open toilet inside, which spreads diseases. They are exposed to custodial violence and in constant danger of custodial deaths by inmates or guards of the prisons. According to Prisoners Act 1900, under trials should be kept separated from the convicted felons, nonetheless due to overcrowding in prisons under trials have to share rooms with the convicted, which inculcates criminalizing behaviour in under trials. They tend to pick up a thing or two. Convicted drug users or convicted mastermind criminals put an influence on these pre-trials. As it is said, prisoners go to jail in order to learn things and become hard-core criminals. This is the reason why there is recidivism prevalent in India.
The United Nations Office on Drugs and Crime (UNODC) recommends the separation of under-trials and convicted ones. Pre-trials are usually the bread-winners of their families, they being locked up, affects not only their physical and emotional set-up but also their families’ as they lose their source of income. The families along with the under-trials go through emotional agony and are subjected to social disintegration. In cases, where both the parents land up behind the bars, it harms the children of the wed-lock. Few lucky ones are taken under the care of NGO, however most of them become the prey of delinquency and exploitation. The prison always takes a toll on the offender’s mind. Long-term incarceration can result in mental collapse, depression and nervous breakdown. And it is saddening when under-trials have to go through all these even after long-term sentences only to be found later that the accused had never committed the offence. Petty offenders due to their pending cases spend years inside, exceeding their sentence. And this is abominable and against the essence of the law of justice.
Khatri v state of Bihar- The harsh reality
In the infamous case, Bhagalpur blinding case aka Khatri & Ors v state of Bihar (1981), an exceptionally evil and tormenting incident took place. In the said central jail of Bhagalpur, 80 suspects were blinded by puncturing their eyes by needles and drenching them by acid. Such a barbaric and torturous ‘punishment’ the prison officials inflicted upon the pre-trials only due to the fact they were the suspects to some case, taking law into their own hands. A clear violation of article 21 which guarantees the right to life with dignity and liberty. Apart from the inhumane activity that the jail conceived, it is also to be noted that the pre-trials did not get any legal representative nor were they presented before the magistrate within 24 hours. When the suspects were brought before the magistrate, the magistrate didn’t question about the grievous injury that the pre-trials incurred. This is the first case where the victims were awarded compensation due to their infringement of article 21. In the words of Bhagwati j, “Why should the Court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the precious fundamental right to life and personal liberty?” This is an account of ruthless, cruel and devastating situation of jails in India which indicates the precarious condition of justice delivery system.
Informal arrests- The beginning
To start with, there is arbitrary and unnecessary arrests done by the police. According to the procedure established by law, an arrest can be done when it’s a cognizable offence, it then must be a reasonable suspension accompanied by personal responsibility and personal judgement of the police. The arrested person has the right to know the grounds on which he has been arrested and should also be made aware of the legal rights and provisions he has. India is subjected to informal arrest or illegal arrests. This is an example of misuse of power by the police. In the Code of Criminal Procedure (Amendment) Act, 2006, to limit the arrests, the police can send a “notice of arrest” than actually arresting the accused. It is also provided that the horizon of compoundable offences should be widened. Compromises between the parties should be encouraged.
Bail and poverty
We can categorize under trials into 2 categories. One of which whose cases are pending or on-going in the competent courts and those who can get bail, but unable to pay bails. It is found that most of the under trials come from marginalised sections of the society where 53% are Muslim, Dalit and Adivasi. As per sources around 29% are illiterate and 42% have not completed secondary education. Under trials are mostly poor destitute people who face monetary deficiency and to address this problem, the law commission in its 268th report mentioned that the impoverished people who are unable to pay bail, should be freed without taking any sureties or bail.
Right to speedy trial
Right to speedy trial is a constitutional right guaranteed to every citizen in India. It simply means the speedy disposal of cases. Under trials wait for their trial for as long as lifetime and exceeding the sentence that they were accused of. Right to speedy trial is mentioned in the English law, Magna Carta. Liberty is for all and the principle ‘innocent until proven guilty’ upholds. The article 21 of the constitution upholds that “no one shall be deprived of life and liberty except procedure established by law.” But in the case of Maneka Gandhi v union of India, it was held that procedure established by law should also be just, fair and reasonable. And any procedure that puts the indigent, week, innocent people in jail just because they are not able to afford bail and the competent courts do not have ‘time’ for trials to even commence, cannot be just and fair. It is inhuman and indecent to wait in prison when “innocents” have to rot in dingy rooms, overcrowded prisons, bad food and always at a risk of custodial violence. Waiting for 12-14 years until courts declare innocent/guilty is against justice.
Justice Krishna Iyer in the case of Babu Singh v state of UP said that “our justice system even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’ whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.”
The CrPC lays down that any proceeding must be executed as fast as possible- “In every inquiry or trial proceedings shall be held as expeditiously as possible and in particular when the examination of witness has once begun, same shall be continued from day to day until all the witness in attendance have been examined.” The section 167 of CrPC directs the police to complete investigation of offences punishable by death, life imprisonment or sentences more than 10 years, within 90 days and for other offences within 60 days respectively. International Covenant on Civil and Political Rights (ICCPR) too, promotes the right to speedy trial.
Why the right to speedy trial is a far cry
The criminal justice administration is also to be blamed for the plights of the under trials. The right to speedy trial is unavailable because of various obstacles that come up in under trials’ way. There is a huge pendency of cases owing to the huge population that our country has. However, the number of judges in India is very minimal with respect to the required strength. In India there are 19.66 judges for 10 lakh people making the ratio highly inadequate due to dependency on the legal system. Witnesses play an important role in determining the case but it’s delayed and adjourned due to the non-appearance and lack of cooperation by witnesses. It is observed that witnesses back track from their positions due to inconvenience of appearing several times and sheer fear factor of criminal administration system in the absence of a friendly, hassle-free court proceedings. Many a times, it is also seen that due to commuting problems under trials fail to reach the courts, although it is the responsibility of the respective police stations to take the under trials to courts on the dates of their hearings. In this digital age where almost everything can be done from a place, it is also feasible to video conference and let the proceedings of the court carried out. Thus, video conferencing between the prison and the courts should be encouraged.
Free Legal aid- A constitutional right
As per the article 39A of the Constitution, every Indian has a right to legal aid. “The state shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.” For the poor illiterates who constitute the most in the population of under trials, it is the duty of the state to provide them with legal counsel. And not just when the trial commences but when they are first brought in front of the magistrate. It is also the duty of the District and Session courts to inform the accused about his right to free legal aid. (Hussainara Khatoon & Ors v Home Secretary, State of Bihar)
Section 436A- A way out
The section 436A of CrPC states that any under trial who has undergone half of the sentence in prison shall be released on personal bond with or without security. The 268th law reports suggests that the section shall be amended to- any under trial who has spent one-third of the sentence of imprisonment, as would have been assigned to him due to the commitment of any offence, can be freed on personal bail with or without sureties. It should be available for the offences which have up to seven years of imprisonment. To the offences which charge the accused of more than seven years of imprisonment, the under trial who has completed half the sentence of imprisonment will be benefitted by this provision. However, according to 436A, the period of sentence will be excluded when the delay has occurred due to the accused. Also provided, any matter regarding this will be subjected to court’s discretion.
An act of hope- A way ahead
Despite all such available provisions, committees starting from All India Jail Committee (1919-1920) to Mulla Committee (1983) and so on.., suggestions, laws and precedents, little has been done for the under-trials. Amendments are required, procedure must be changed, and all these entitlements that are only on the papers need to be implemented properly. To quote Thomas A. Edison- “having a vision for what you want is not enough. Vision without execution is hallucination.”
Prison is a state’s affair. Thus, the treatment of prisoners varies from state to state. Some states do well like Gujarat has a smoking joint within the prison for the prisoners. The author feels that, there should be a National policy for prisoners entailing new laws and policies pertaining to all the prisoners of the country.
It is true that the number of judges should be increased to fasten the process but the state should open new special courts for petty offenders. This way, the burden on District Courts and High Courts will be reduced. The salary of lawyers who represent the necessitous people in courts, should be incremented. In many instances, the lawyers’ representing the poor do not give their best and are found taking sides of the other party because they don’t get paid well. In an interview by Amnesty international, a Patna legal aid lawyer voiced that even after working 2-3 years in a case, he only earned Rs.500. Good incentives will bring out good results.
Scientific classification among the prisoners is indispensable. Under trials and convicted felons must be kept separated in different cells. A prison is correctional house, it should bring about reforms within a person. Mandatory training and skill-development programs should be implemented. Counselling of prisoners can be done to avoid recidivism and to change the person from within. For example, the stress management and rehabilitation training (SMART) introduced in 1999 in Tihar jail by Sri Sri Ravi Shankar, indulges prisoners in yoga and special breathing technique called Sudarshan Kriya and meditation.
State expenditure on prison system should be increased. Infrastructure should be developed keeping sanitation in mind. Prison is one of the important components of the criminal justice administration and it cannot be neglected. Prisons should work towards making cells a home for rehabilitation and not as a punishment home. Like Mahatma Gandhi had said- “hate the crime not the criminal.” Criminals are sent to prison for the sole reason of punishment which results in mental exhaustion and social disintegration.
The new initiative of open jails should be adopted. Open jails bear the concept of ‘no bars’ where the prisoners can live with minimal security. Under-trials should be entitled to better cells, wages and hygiene. This would be a reformative approach for the under-trials as technically they are not guilty and shouldn’t be exposed to harsh prison life. Moreover, under-trials are only suspects who land up in jail, they shouldn’t go through all the trouble just like convicted inmates. They are human beings, a part of the society as much as we are and they are entitled to nothing but humanly treatment and that too in accordance with the law.
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