The Criminal Justice System in India has many loopholes. With my last assignment with the Human Rights Law Network (HRLN) on Prisoner’s Rights, I came to know about several problems existing in the system. I witnessed so many cases where for petty crimes people are in jails for more than 3, 4 years. Many undertrials are detained because they have no money to get a bail or hire a lawyer to assist them. If he is unable to furnish surety, he cannot get bail and spends years in a prison. Quite often, the surety amount asked by the court is so large that the poor cannot furnish it, as a result he goes to the prison. And the speed of justice delivery system has given rise in prison population, which has resulted in prisons’ overcrowding.
The criminal law of India is a replica of colonial times. It is hostile to the poor and the weaker sections of society. The law still serves and protects the needs of the haves and ignores the have-nots. Such biasness has resulted in rich people escaping law and the jail is more often full of the unprivileged class of society. The hierarchy of courts and with appeals after appeal has led to a situation where the poor cannot reach the temple of justice due to heavy cost of its access. In other words, one can state that granting justice at a higher cost indirectly means the denial of justice. Such circumstances lead to a clear violation of the Supreme Court judgment which held, legal aid to a poor is a constitutional mandate not only by virtue of Article 39A but also Articles 14, 19, 21 which cannot be denied by the government.
When we think about prisons the image that comes to our mind is that of hardcore criminals who were imprisoned for committing crimes. But in actual fact 64.7% of prisoners in Indian jails are undertrials who may or may not be punished. Thousands of them, arrested on suspicion of committing petty crimes, languish in jails for a much longer period than the maximum punishment under the law for the crime which they have committed. The presence of higher number of undertrials in the prison results in their overcrowding, which in turn causes many socio economic problems in the society.
As understood by a layman, an ‘undertrial’ is a person who is currently on trial or who is imprisoned on remand whilst awaiting trial. As defined in the Oxford Dictionary, ‘A person who is on a trial in a court of law’. 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’.
The presence of large number of undertrial prisoners and their continuing stay for longer period definitely indicates the slow pace of trials which will leads to the overcrowding of prisons. In the National Human Rights Commission’s view, unnecessary and unjustified arrests made by the police and the slow judicial processes causing congestion of undertrial prisoners are the main causes of overcrowding in jails.
The poor are particularly worse off when confronted with criminal justice system.
When prison population goes beyond its authorized capacity of accommodation, it is known as overcrowding. Overcrowding in prisons is an important human rights issue as it results in deterioration of the general living conditions of the prisoners. It also creates hindrances in the reformation process. Prison officers find it difficult to initiate and continue correctional measures.
Overcrowding contributes to a greater risk of disease, higher noise levels, which affect the health of the prisoners, and adversely affect the hygienic conditions, surveillance difficulties, which increase the danger level. This apart, life is more difficult for inmates and work is more onerous for staff when prisoners are in over capacity.
The system of imprisonment has originated in the first quarter of the 19th century. In the initial stages the prisons were used as a place for detention of the undertrials. It has undergone a radical change and the penology of the present day has become centered on imprisonment as a measure of rehabilitation of the criminals. But unfortunately even now the prisons are crowded with under-trial prisoners. Many of them are innocent persons who are caught in the web of the law eagerly waiting for their trial date and several of them are prepared to confess their crime and accept their sentence.
There is a law where undertrials can get justice but the implementation is an issue. In one of the study the data compiled by the National Crime Records Bureau (NCRB) at the end of 2013, the total number of convict prisoners was 1,29,608 and undertrial prisoners was 2,78,503 in jails of the country, there were 1,92,202 Hindu, 57,936 Muslim, 11,666 Sikh, 12,406 Christian, 4,293 Other under-trial prisoners in jails at the end of 2013. In terms of societal strata there were 59,326 Scheduled Caste, 31,581 Scheduled Tribe, 87,848 OBC and 99,748 other under-trial prisoners at the end of 2013.
The Supreme Court of India in its order dated September 5, 2014 in Writ Petition No. 310/2005 Bhim Singh Vs Union of India & Others, relating to under-trial prisoners, has directed for effective implementation of Section 436A of the Code of Criminal Procedure by directing the jurisdictional Magistrate/ Chief Judicial Magistrate/Sessions Judge to hold one sitting in a week in each jail/prison for two months commencing from October 1, 2014 for the purposes of effective implementation of section 436A of the Code of Criminal Procedure.
In its sittings in jail, the above judicial officers shall identify the under-trial prisoners who have completed half period of the maximum period or maximum period of Imprisonment provided for the said offence under the law and after complying with the procedure prescribed under Section 436A pass an appropriate order in jail itself for release of such under-trial prisoners who fulfill the requirement of section 436A of Cr PC.
One of the serious concerns for these undertrials is their family. In the absence of the main breadwinner, many families are forced into destitution. This combined with the social stigma and ostracism that they face, leads to circumstances propelling children towards delinquency and exploitation by others. It is a vicious circle. The problems become acute when they belong to the socio-economically marginalized and exploited sections of the society.
One of the horrible plights a person can undergo is spending years in a jail as undertrials and at the end he was found not guilty. In such a situation can anyone compensate them for the mental agony and torture they and their family have suffered or give back to them the lost years, the loss of honour and reputation. The undertrials should not be kept in the jails as far as possible. If unavoidable then they should be kept separately with in the prison so that they are not allowed to mix with the convicts. Within the undertrials also a classification should be made so that the first and young offenders should be kept away from the hard core criminals thereby preventing contamination.
There are hundreds of examples where court acquitted people from criminal charges after spending more than 10 years in jail. There are no proper policies for their rehabilitation. No one can compensate them the time they spent and the things they lose during the period. But to respect their human rights govern-ments should form a policy to adequately rehabilitate them.
In order to mitigate the condition of undertrial prisoners, the first and foremost thing that has to do is to bring down their population drastically. This cannot happen unless all the branches of the criminal jus-tice system work hand in hand. The presence of large number of undertrial prisoners is really shame to any criminal justice administration .For this we have to take these undertrials out of the prison or not to keep them for a long period as well as not to sent more undertrials to the prison.
* Project Coordinator, Criminal Justice Initiative, Human Rights Law Network, New Delhi. Courtesy: http://www.countercurrents.org/