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Introduction:

“No iron curtain can be drawn between the prisoner and the constitution.”[1]

Article 21 of the Indian Constitution guarantees the right to life and personal liberty to all Indian citizens. This cannot be curtailed by any person until and unless it is specified in any law of the country. This fundamental right is for all persons including the accused and the convicted persons. But the rights and issues of the under trial prisoners becomes unnoticed. All the accused are innocent until proven guilty but, here the position of under trial prisoners are different. They are incarcerated even before being convicted. There is a chance for these people to be acquitted even after being in the jails for the long term. This will not only make the lives of the under trial prisoners worse, but also their family members.

A long time ago, the Supreme Court remarked that “long term incarceration of under trials is a crying shame on the judicial system.” This saying remains an important guiding principle for the legislature and judiciary to make a positive change in the system. Even though there are many new laws and reforms, this does not decrease the extent and duration of under trial incarceration. The main aim of this article is to bring into light the problems faced by the under trial prisoners and the reason for long term incarceration of the under trials.

Under Trial Prisoners

Under trial prisoner is a person who has been incarcerated in the prison, during the investigation, inquiry, or trial period for the offense that he/ she is accused of. In other words, a person who is not convicted and being held in custody waiting for the trial is known as an under trial prisoner.[2]

When a person is caught up in the commission of a crime and there is circumstantial evidence against him, then he is arrested. After an offender is being arrested, the next step to about his confinement which is dealt with either by the court or the police. This process involves giving bail to the said accused. The term Bail is not defined in the code, but all the offenses are classified into bailable and non-bailable offenses. The bailable offenses are less serious offenses and bail should be given to the accused. Whereas in non-bailable offenses, bail cannot be claimed as a matter of right and it is upon the discretion of the concerned court to give the bail according to the CrPC provisions. Under trial, prisoners are the prisoners, who are put into the prison either under a non-bailable offense or under a bailable offense but who are unable to get bail. “The reasonableness of under trial detention can be measured based on the circumstances of the cases such as the seriousness of the offenses, the risk of disappearance of the suspect, the risk to induce or influence of the witnesses and the conduct of the domestic authorities, including the complexity of the investigation.”[3]

Of course in Indian law, these under trial prisoners have certain legal rights that were formulated by the legislature and judiciary. Nevertheless, these laws which are dealing with the under trial prisoners are considered to be week, ineffective and flawed. This can be seen in the raise of under trial prisoner population in India.  

Statistics of Under Trials

The National Crime Records Bureau (NCRB) releases the Prison Statistics India reports annually. Its 25th edition statistical report on December 2019 created a shock wave in the country. According to it, out of 4,78,600 total prisoners, 3,30,487 are the under trial prisoners. In other words, 69.05% of the total prisoners are the number of under trial prisoners in the various jails of the country. Out of this, 50.5% of under trial prisoners were lodged in District Jails, 36.7% in Central Jails, and 10.6% in Sub Jails.[4] Based on under trial population, India ranks 15th out of 217 countries.[5] Among these under trial prisoners, 74.08% of prisoners were incarcerated for a period up to 1 year 13.35% of prisoners up to 1 to 2 years, 6.79% of prisoners up to 2 to 3 years, 4.25% of prisoners up to 3 to 5 years and 1.52% of prisoners were incarcerated for more than 5 years. From this, the trend, ground reality and the statistic of the under trial prisoners can be seen.

Reasons for High Population of Under Trial Prisoners

One of the main reasons for the prolonged incarceration of under trial prisoners even in petty cases is that they are not in the position to get bail bonds and get released on the bail. Majorly these under trial prisoners are the people from poorer and under-privileged groups of the society, who are from agricultural or rural background. These people are neither aware of their legal rights nor have sufficient money and means to represent their case.[6] 

According to a source, most of the under trial prisoners who face long term incarceration is SC’s, ST’s and OBC’s. These people who are being oppressed by the people in power face a high level of discrimination as they belong to “socio-economically marginalized groups” and have poor legal representation.[7] Even in the case of Hussainara Khatoon & Ors v. Home Secretary, State of Bihar[8]  the Supreme Court has observed that “the under trial prisoners languish in jail because they are downtrodden and poor and not because they are guilty.” Another important reason for more number of under trial prisoners is because of delay in conducting trials. These are some of the reasons for more population of under trial incarceration in Indian jails.

Problems of Prolonged Under Trial Incarceration

All the detainees have a right to a trial or to release within a reasonable time. There can be a violation of the right to liberty and fair trial due to prolonged under trial incarceration. Excessive pretrial incarceration violates the right to a speedy trial, undermines the rule of law, leads to overcrowding of prisons, and can lead to custodial excesses. This will not only affect the lives and livelihood of the prisoners but also their family members. As mentioned earlier, most of the under trial prisoners are poor and might be the bread winners of their family. Firstly, after getting arrested the under trial prisoners will lose their job. In turn, the family members who are dependent on him will lose their source of income. As there is no income, neither the family members can lead their life nor can they help the prisoner. This will make their life a living hell. If in case he/ she is a single parent, then the lives of the children become worse and are exploited. This under trial incarceration punishes the people even before they are convicted for the crime committed.

There are many problems and grave consequences to the prisoners because of the under trial detention. The lives of these prisoners in prison become harder and it may drive them crazy. Prisoners as a whole will be in a pathetic condition in the jails. The conditions of these under trial prisoners are even worse. Their physical and emotional well-being is damaged.

“The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”[9]

Every accused is innocent until they are convicted. Some of the under trial accused may not have committed the crime itself. By any circumstances, if they are kept with the convicted prisoners, then there are more chances of inculcating criminal behaviors in these under trial prisoners. Some of the convicted criminals and drug users may influence these under trial prisoners.

The prolonged incarceration of these under trial prisoners can cause many physical and mental problems. They can result in depression and nervous & mental breakdown. They can also be tortured and ill-treated by the other inmates and the prison officers. Some prisoners undergo this suffering only to find that they have not committed the crime. There are many instances like this. In 1996, three Kashmiri men were arrested by the Delhi police for their alleged roles in the Lajpat Nagar market bomb blast and later in the Samlethi blast case. On July 22, 2019, these three were acquitted after 23 years of incarceration. Among the three, Mohammad Ali Bhat was just 25 years old when he was arrested and at the age of 48 years, he was found to be innocent. He has lost 23 prime years of his life in prison because of India’s lethargic justice delivery system.[10] Some under trial prisoners even spend many years inside the prison exceeding the maximum sentence, which is prescribed for the offenses that they are charged for.

The physical and mental sufferings that are experienced in the jail can haunt the under trial prisoners even after their release. These under trial prisoners might have a lack of confidence in the society after their acquittal. They are regarded as criminals in the eyes of society, which in turn damages the life and livelihood of the under trial prisoners and their families.

Prevention and Solution

As these under trial prisoners are one of the most vulnerable sections of the prison population they need more help and protection. These prisoners should not suffer in the jails before they are proven guilty in the eyes of laws. One of the main solutions for preventing the long term imprisonment of the under trials is speeding up the investigation and trials. For example; there should be an immediate increase in the number of judges and magistrates and special courts in jails. The method of video conferencing can also be brought into practice. In this way, the number of cases heard can be increased. Next is the enforcement of the Legal Aid system in the country. Every Indian has a right to legal aid according to Article 39 A of the Indian Constitution. As most of the under trial prisoners are illiterate and poor, they need proper guidance for a fair trial. It is the duty of the state to help them find a lawyer from the beginning when the accused is first brought before the magistrate. As said in the case of Hussainara Khatoon & Ors v. Home Secretary, State of Bihar[11], it is also the duty of the District and Session courts to inform the accused about his right to free legal aid.

To ensure justice for under trials it is very important to implement the existing provisions of the Code of Criminal Procedure effectively. All the agencies of the criminal justice system including the police, the judiciary, the prosecution, the defense lawyers, and the prison department should adopt an intensive and a well-coordinated approach to make the lives of the under trial prisoners better. There are many existing laws in the Indian justice system. It should not only be in the papers but should come into force. For example; there should be strict implementation of Section 167 of the CrPC which lays down the maximum period within which the police investigation must be completed and a charge sheet filed before the court. This section should be strictly followed by the police and the courts.

Decisions about custody or release of an accused should not be influenced by factors such as gender, religion, background, financial conditions, or social status. The right to a speedy trial and the right to bail which have been considered as fundamental rights need to be properly enforced by the judiciary to access justice.[12] The above mentioned are some of the solution for the said problem.

Conclusion

The above-mentioned discussions reveal the state of under trial prisoners in India. Due to prolonged incarceration, the under trial prisoners face a lot of challenges. This not only makes the lives of the under trial prisoners worse, but also the family members who are dependent on him/ her. It cannot be said that there should be an early release of these under trial prisoners, but the trial process should be examined and reformed properly in a way it helps these prisoners. From this, it can be concluded that the authorities of the criminal justice system should implement the existing laws as well as guidelines that are issued by the Judiciary from time to time for the protection of the under trial prisoners.


References:

[1] Suil Batra v. Delhi Administration, AIR 1980 SC 1579.

[2] https://www.lexico.com/definition/undertrial.

[3] “Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers.” https://www.ohchr.org/documents/publications/training9chapter5en.pdf.

[4] Prison Statistics India, NCRB (2019). https://ncrb.gov.in/sites/default/files/Executive-Summary-2019.pdf.

[5] Roy Walmsley, World Pre-trial/Remand Imprisonment List, WPB (4th ed., 2020). https://www.prisonstudies.org/sites/default/files/resources/downloads/world_pre-trial_list_4th_edn_final.pdf

[6] https://www.prisonlegalnews.org/news/.

[7] Aparna & Keerthana, Bail and Incarceration: The State of Under trial Prisoners in India (2017).

[8] 1979 SCR (3) 532.

[9] Motiram & Ors. v. State of Madhya Pradesh AIR 1978 SC 1594.

[10] https://www.indiatoday.in/india/story/lajpat-nagar-blast-case-3-kashmiri-men-found-innocent-after-23-years-in-captivity-1573692-2019-07-26.

[11] 1979 SCR (3) 532.

[12] Niranjan Sahoo and Vivek Jain, Justice System in Crisis: The Case of India’s Undertrial Prisoners (2015), https://www.orfonline.org/wp-content/uploads/2015/08/IssueBrief_103.pdf.


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