-By Vidushi Gupta
Prisons and correctional facilities are an essential component of the criminal justice system in India. However, very little attention is paid to the state of the Indian prison system. Particularly neglected is the group comprising undertrials within these prisons. The issue of undertrial prisoners in India first came to light in 1979, when a member of the National Police Commission KF Rustomji exposed the conditions of undertrials in Bihar prisons, through the Indian Express.
This article highlights the state of undertrial incarceration in India. The author argues that the core reason behind the high levels of undertrial population and the consequent overcrowding in prisons is the poor implementation of judicial decisions and the recent amendments made to the laws.
From a reading of Sections 428 and 436A of the CrPC, and the 78th Report of the Law Commission of India, it is clear that an undertrial prisoner denotes an un-convicted person who has been detained in prison during the period of investigation, inquiry or trial for the offence he/she is accused to have committed, under any law. So, it includes cases where the charge sheet has not been filed or the trial has not commenced.
Undertrial prisoners include persons charged with non-bailable offences, who have been denied release on bail, or persons charged with non-bailable offences (who have been granted bail by court) or with bailable offences (for whom bail is a matter of right), but fail to furnish bail bond because of inability to find surety etc.
Ground Reality and Statistics
As per Prison Statistics India 2019, a report released by the National Crime Record Bureau (NCRB), there are a total of 1350 prisons in India. In 2019, the capacity of prisons increased by 1.90% but the number of prisoners increased by 2.69%, as compared to 2018. Thus, the occupancy rate increased from 117.6% to 118.5% between 2018 and 2019. This rate has been quite consistent over the years.
The high occupancy rate indicates the problem of overcrowding in prisons. This is due to the large number of undertrial prisoners. India ranks 15th out of 217 countries on the basis of its undertrial population. Undertrial prisoners formed 70% of the total prison population in 2019. This number has been consistently high, at an average of 66.97% over the past years. The number of undertrial prisoners increased by 2.15% between 2018 and 2019; of these, only 91 were civil inmates.
As per the Prison Report, many undertrials languish in jails for several years. 74.08% of undertrials were confined for up to 1 year, 13.35% for 1-2 years, 6.79% for 2-3 years, 4.25% for 3-5 years and 1.52% of undertrials were confined for more than 5 years.
There are various reasons for the burgeoning population of undertrial prisoners. Delay in conducting trials is one of the prime causes. The total number of undertrials is rising; however, the percentage of undertrials who spend less than one year in prison is declining, implying that more undertrials are being detained for longer than one year, due to delayed trials. This is despite the fact that accused persons have a ‘right’ to speedy investigation and trial under Article 21 of the Constitution and Section 173 of the CrPC (as was held in the case of Vakil Prasad Singh v. State of Bihar).
Another reason is the lack of easy bail in India. In Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, it was held that indigent undertrials can be released on personal bond without any surety, when there is no risk of absconding. This is also permitted under Section 436 of the CrPC. Under Section 436A, they have the right to be released on bail or personal bond with/without sureties, if they have undergone detention for half or entire of the maximum period of imprisonment for that offence. Further, as was held in Uday Mohanlal Acharya v. State of Maharashtra, undertrial prisoners have the indefeasible right under Section 167 to be released on default bail (even for non-bailable offences), when their judicial custody exceeds 90/60 days, but no charge sheet is filed by the police. However, many undertrials still spend more time in jail than the sentence they would have got had they been convicted. This is because judicial authorities often deny bail for non-bailable offences, set the bail amounts high and insist on sureties, instead of granting release on personal bonds, which results in long periods of imprisonment for poor people accused of committing petty crimes.
Another problem is that of indiscriminate arrests. Section 41 of the CrPC was amended in 2009 to prevent arbitrary arrests. Courts have also held that arrests should be an exception and not the rule (See Joginder Kumar v. State of Uttar Pradesh). Moreover, in the case of Arnesh Kumar v. State of Bihar, it was held that not only should police officers give reasons for arrests, but Magistrates also should apply their mind while continuing the detention under Section 167. However, these developments have not been very successful in curbing the problem.
Yet another issue is that the majority of the undertrial prisoners are illiterates (28.6%) or dropped out of school before Class X (41%). So, a lot of them are not aware of their rights. Further, most of the undertrials (about 65%) are from the Scheduled Castes, Scheduled Tribes and Other Backward Classes. 19% of the undertrials are Muslims. When compared to the proportion of these communities in the general population, it is seen that they are over-represented as undertrials. This is because they belong to socio-economically marginalised groups, who have poor/no legal representation, and face high levels of discrimination. The police often implicate them in false cases, to harass them and clear their backlog of unsolved cases.
Under Article 22 of the Constitution, undertrials have the right to consult and be defended by a legal practitioner of their choice, as was held in State of Madhya Pradesh v. Shobharam. Legal aid has also been held to be an inalienable element of ‘just, fair and reasonable procedure’ under Article 21. However, many poor undertrials do not file bail applications due to ignorance of the free legal aid system or for want of advocates. Even the appointed legal aid counsels do not provide effective representation. Moreover, legal aid is often limited to the trial process. This is problematic since the pre-trial stages are largely controlled by police and prison authorities, resulting in a power imbalance between the authorities and the accused persons. Thus, it is at the pre-trial stages that the accused persons are particularly vulnerable to a violation of their rights, and need legal aid the most.
Another reason for the high undertrial population is delay in production of undertrials in court, due to non-availability of police personnel who have to escort them to the court, thereby resulting in automatic extension of custody. Although videoconferencing facilities have been introduced, they are severely limited. As of 2018, only 929 district courts and 342 prisons had such facilities. The problem is aggravated in case of women undertrials, due to the need for female police escorts.
That every person is presumed to be innocent until proven guilty, is a cardinal principal, recognised under the Universal Declaration of Human Rights, 1948. However, undertrial incarceration is violative of this principle, since undertrials are ‘punished’ and deprived of their liberty, without even being tried and convicted. This is a serious issue, since nearly a quarter of those undertrial prisoners who are not released are later acquitted. Moreover, detaining them in the same prisons and subjecting them to the same horrific conditions as convicts, essentially equates them to guilty people.
Another problem is that due to overcrowding, undertrial prisoners are forced to survive in badly-maintained jails. The Prisons Act, 1894 provides for separation of female and male prisoners, of male prisoners under the age of 21 from others, of those who arrive at the age of puberty from others, and of undertrial prisoners from convicted criminal prisoners. Moreover, undertrials can purchase or receive food, clothing, bedding etc. from private sources, and can have visitors etc. However, the actual conditions are quite deplorable. Most prison laws do not include subsidiary jails within their purview, meaning that the requirements of segregation etc. can be foregone in these jails. Only 15 States/UTs have women jails, making it harder for women undertrials. The number of un-natural deaths in prisons, due to suicides, accidents, murders, assault etc., has also increased by 10.74% between 2018 and 2019, indicating the unsafe and violent environment. Moreover, instances of human rights violations are rampant in prisons. Undertrials are often handcuffed, despite courts discouraging the same (See Sunil Batra v. Delhi Administration). The physical and psychological deprivations experienced in prison haunt the undertrial, even after release.
Further, in the eyes of society, imprisonment before/during trial is as ignoble as imprisonment upon conviction for an offence. Thus, after being acquitted and released, an undertrial may experience low esteem in society and may be unable to find jobs, accommodation etc. It may also result in socio-economic devastation for families of undertrials, especially if the prisoner was the sole earning member. Further, women undertrials are often accompanied by their children, who also stay within the prisons. The prison environment is not conducive for the development of such children, which was recognised by the Court in the case of RD Upadhyay v. State of Andhra Pradesh and in the report of the J. Krishna Iyer Committee constituted in 1987.
There is a need to revamp outdated prison laws like the Prisons Act, that provide for penalties like fetters, solitary confinement, whipping etc., for prison offences, which have been held to be violative of the Constitution, as per recent judgements (See Sunil Batra v. Delhi Administration). Some prison laws like the Delhi Prisons (Admission, Classification, Separation, Remission, Reward and Release of Prisoners) Rules, 1988 provide for the classification of undertrials on the basis of their prior standard of living, and are thus discriminatory in nature.
The emphasis should be on reducing undertrial population, by implementing the amended statutory provisions, judicial decisions regarding rights of undertrials, arrests and grant of bails, and the recommendations of various committees on prison reforms, like the ones headed by Justice Mulla.
Further, undertrials should be housed in open jails, where they can move around freely and earn a living, to get rid of the punitive character of incarceration. They should be provided with better facilities than convicts, including food, clothing, water, medical facilities, sanitation, recreation and communication with relatives and lawyers. Legal aid cells should be set up in prisons to inform undertrials about their rights and the performance of the appointed counsels should be reviewed periodically. To counter discrimination, prejudice and bias in the police towards certain communities, sensitisation programmes and workshops should be introduced. Undertrials should also be compensated, upon release and acquittal. Steps should be taken for their rehabilitation after release, by providing them with self-employment skills, educational and vocational training etc.
Undertrials form the majority of the prison population in India and lead to overcrowding. Various amendments have been made to the statutory provisions, to curb unnecessary arrests and allow for release on bail/personal bonds. Several judgements have also upheld the right of undertrials to speedy trial, legal aid etc. However, the undertrial population continues to increase unhindered. The reason for this mismatch between the legal position and the actual state of affairs, is the poor implementation of laws and judicial decisions made in this regard, by police authorities, lower judiciary and prison administration. Thus, in addition to introducing new ideas and measures, we need to focus on effectively implementing the existing legal framework, to ameliorate the state of undertrial prisoners in India.
[The author is a third-year B.A.LL.B student at NLS, Bangalore.]