Context

• In India, about 75 percent of the total number of prisoners are undertrial.  More than 3.5 lakh undertrial prisoners are lodged in jails across the country and awaiting trial.
• Recently, PM also raised the issue of undertrial prisoners in jails in a conference of Chief Ministers and Chief Justices of High Courts.

Undertrials in India: A backgrounder

Who are the undertrials?

• An undertrial is a person who is being held in custody by a court of law and is awaiting trial for a crime.
• The 78th Report of Law Commission also includes a person who is in judicial custody on remand during investigation in the definition of an ‘undertrial’.

Constitutional protection for Prisoners/Undertrials

• ‘Prisons/persons detained therein’ is a State subject under Entry 4 of List II of the Seventh Schedule to the Constitution of India.
• Article 39A of the Constitution directs the State to ensure that the operation of the legal system promotes justice on a basis of equal opportunity and shall, in particular, provide free legal etc.
• Article 21 says, “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

Vital stats

• Over three-fourths of all those in jail, the undertrials amount for the highest proportion of 75% in at least a decade.
• These facts emerge from data given by NCRB and analysed by India Justice Report, 2020.

• High rate in Sensitive Areas: Delhi and Jammu & Kashmir reported the highest share of undertrial inmates of the total prison inmates, followed by Bihar, Punjab and Odisha and Maharashtra.  
• Majority belong to marginalized groups: Two in three prisoners under trial belong to SC, ST or OBC caste groups, data show. Two in five undertrial inmates were educated below grade X and more than a quarter were illiterate.
• Longer spend in Jails: Nearly 2% of the undertrials in 2020 had spent over 5 years in confinement, up from 1.5% in 2019. Overall, 29% of all the undertrials had spent over a year in prison.
• Young population behind bars: Among the undertrial inmates, 49% are between 18 and 30 years of age, but among convicts, only 29% fall in this age group. Further, 50% of the convicts are aged between 30 and 50 years.

Plight of under-trials: Various challenges faced

(1) Abuses faced in jail

• Prison violence: Prisons are often dangerous places for those they hold. Group violence is also endemic and riots are common.
• Physical mishandling: Physical mishandling by jail officials is no rare phenomena in India.
• Extra-judicial torture: No conduct of the prison authority is criminalised and it grants them immunity and presumes their good faith in acts of extreme neglect that could and do result in the death of inmates.

(2) Criminalizing impacts

• Impact of inmates: Circumstantial and young offenders often turn into full-fledged criminals when subjected to prison conditions.
• Criminalization by labelling: It is an often given quote, ‘prisons are Universities of crime where people go in as under-graduates and come out with PhDs. in crime.’ Ex. Drug abuse in Jails

(3) Health problems

• Prevalent un-hygiene: Most of the prisons face problems of overcrowding and shortage of adequate space to lodge prisoners in safe and healthy conditions.
• Medical history gets ignored: People are cramped in with each other in unhealthy conditions, infectious and communicable diseases spread easily. Ex. Spread of TB

(4) Human rights violation

• Taboo over mental illness: Though miniscule, mentally ill prisoners constitute another percentage of population, which is largely ignored and forgotten by both the outside world and those inside.
• Delayed family planning: Undertrials also faces physical separation with their spouses resulting into delayed family planning.

(5) Suffering of the families  

• Livelihood crisis: In the absence of the main bread winner, the family is many a time forced into destitution with children going astray.
• Social stigma and boycott: This combined with the social stigmatization that they face, leads to circumstances propelling family towards delinquency and exploitation by others.
• Exploitation: The dominant class often take advantage of this situation to exploit the remaining family members to the fullest possible extent. This can take the form of rape or forced prostitution.

Social aspects of the issue

• Hostility from the law: Criminal Law of India is a replica of colonial times. It is hostile to the poor and the weaker sections of society.
• Caste prejudices and over-policing: This exists for certain communities due to important social factors behind the significant presence of marginalized caste groups in jails.
• Rich vs. poor divide: This has resulted in rich people escaping law and the jail is more often full of the unprivileged class of society.
• Justice delayed: Undertrial prisoners often get neglected in jail for many years, in many cases it exceeded the maximum sentence for the crime which they had committed.

Specific problems faced by under-trial prisoners:

• No Right to Speedy Trial : It is recognised by the Supreme Court in Hussainara Khatoon vs. Home Secretary, Bihar. This is violated due to protracted delays due to:
• Systemic delays.
• Grossly inadequate number of judges and prosecutors.
• Absence or belated service of summons on witnesses.
• Presiding judges proceeding on leave.
• Remands being extended mechanically due to lack of time and patience with the presiding judge.
• Inadequacy of police personnel and vehicles which prevents the production of all prisoners on their due dates.
• Right to bail is denied even in genuine cases: Even in cases where the prisoner was charged with bailable offence, they are found to rot in prisons due to exorbitantly high bail amount.  
• Non-compliance by the officials: Undertrials become prisoners of the whims and fancies of individuals’ official’s attitude.
• Politicization of trial:  Prisoners right to effective Legal Aid is also violated due to politicisation of as many lawyers are hired on political consideration.

Way forward

• Separation prisons: Undertrial prisoners should be lodged in separate institutions away from convicted prisoners.
• Non-branding as criminals: There should be proper and scientific classification even among undertrial prisoners to ensure that contamination of first time and petty offenders into full-fledged and hard-core criminals.
• Separate courts for certain offences: Institutions meant for lodging undertrial prisoners should be as close to the courts as possible.
• Limited extension of remands: This has to stop which are also given merely for the sake of the convenience of the authorities.  
• Investigation reforms: Police functions should be separated into investigation and law and order duties and sufficient strength be provided to complete investigations on time and avoid delays.
• Decriminalization of certain offences: There should be a progressive and massive decriminalization so that many of the wrongs, which are given the status of crimes. Ex. Sedition Law
• Going digital: Computerise the handling of criminal cases and with the help of the National Informatics Centre, develop programmes that would help in managing pendency and delay of different types of cases.
• Associated judicial reforms: There should be an immediate increase in the number of judges and magistrates in some reasonable proportion to the general population.  

Conclusion

• Justice Krishna Iyer in the Constitutional Bench judgment in Sunil Batra (I) v. Delhi Administration (1978), held the humane thread of jail jurisprudence.
• This principle now seems long due in India’s case.