If convicted lynchers can get bail, why don’t under trials? Need for a change in India’s criminal law

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Under-trial Prisoners in Jharkhand (social-group wise)

By Sania Mariam*

One of the famous political philosophers, Montesquieu, in his 18th century book “The Spirit of the Laws” wrote, “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.” The quote holds true especially in the context of 21st century India.

Recently, Jharkhand was in news for all the wrong reasons when a serving Union minister, who also happens to be a Harvard graduate, felicitated and garlanded eight convicted murderers in a public ceremony. One can only wonder that if eight “convicted” murderers can get bail, what about the majority of Dalit and Adivasi undertrials who have been languishing for years in the prisons of Jharkhand?

The government’s penchant for arrest and bail is peculiar. It has been a month since the brutal attack on noted social activist Swami Agnivesh in Jharkhand, yet no arrests have made so far, while anyone who so much as whispers that ‘the emperor wear no clothes’ is slapped with sedition.

This includes a list of 20 activists who have been   the Jharkhand government on its various excesses, labour organisations protesting against land laws amendments and the huge number of adivasis, dalits and other backward classes who have been trapped in false cases whenever they have dared to assert their constitutional rights. It is an opportune time to throw light on the condition of undertrials in Jharkhand, away from the light and glare of national media and civil rights organizations.

One of the major findings of a study of undertrials in Jharkhand titled “Deprived of rights over natural resources, impoverished Adivasis get prison” highlights that tribals and dalits branded as Naxals, have been booked under the draconian UAPA act and the major anti-state sections of the IPC. The study conducted by Bagaicha, a social action centre, examined 102 case studies of people put behind bars for their alleged Maoist links.

The report found that 98% of those arrested as Naxalites had no involvement whatsoever with the movement. Only two of them accepted (to the interviewing research team) they had any relation with any of the Left-wing extremist groups. The rest arrested asserted that they had been wrongly framed and arrested. Another study by BIRSA  on extremist activities in Jharkhand and their impact on civil society concluded that, the number of undertrials in Jharkhand prison is on a steady increase. In most cases, the police has been unable to complete framing of charge against them.

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Percentage of SC, ST undertrials vs Census 2011

The problem of undertrials is not of Jharkhand alone. Nearly 67% of people in Indian jails are undertrials — people not convicted of any crime and currently on trial in a court of law. However, according to the latest NCRB Prison Statistics 2015, Jharkhand has the fourth highest number of undertrials staying in one of the worst conditions. An alarming 77.1 % of Jharkhand prison population consists of undertrials, most of which are dalits, tribals and minorities. For every 4 inmates, 3 of them are undertrials in Jharkhand.

What the data say

The percentage of under-trial prisoners stands as 29% Scheduled Tribes (STs), 32% Other Backward Castes (OBCs), 22% general and 17% Scheduled Castes (SCs). The proportion of ST and SC undertrials are disproportionately higher while considering their respective share in the total population of the state. ST’s constitute the highest number of prisoners (undertrials plus convicts) incarcerated in various jails of Jharkhand. The total number of SC and ST behind bars (46%) is more than their total percentage population (38%) in Jharkhand.

Demonstrated by both data and real situation in prisons, it is evident that the poor, disadvantaged and the neglected segments of the society who are unable to either secure the bail amount for release or are not aware of the legal provisions to avail the judicial remedy of seeking a bail. What they lack is political and social capital.

Such long detention not only violates their right to liberty constitutionally guaranteed to every citizen, but also amounts to outright denial of human right of freedom of movement to the marginalised sections of the society. In West Singhbhum’s Chaibasa jail, 72 prisoners who faced a total of 108 cases were identified. The disposal of as many as 101 of the 108 cases were found held up due to some inordinate delay. One can notice a double whammy of marginalisation and discrimination existing within the criminal justice system.

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: Percentage of Undertrials under specific age groups

About 49% of undertrial prisoners, according to the latest available Prison Statistics, belong to the age-group of 18-30 years, the most productive years of one’s life. About 41% of them belong to 30-50 years, the most creative years of one’s life. By denying young offenders bail, the state is further victimising them as the best of their years are wasted, instead of being deployed in learning a skill which would help them survive the real world.

However, it’s not only Adivasis and Dalits, Muslims and Christians undertrials are also overrepresented in prisons across Jharkhand, when data from NCRB prison statistics is compared against their population in Jharkhand. Collectively, these two groups form a population of  19% with a share of 14.53% and 4.30% respectively according to 2011 census, but their share in prisoners, both convicted and undertrials is larger than their share in country’s population.

Moreover, what make the entire situation worse are deplorable conditions of these prisons. Jharkhand has 29 jails across 24 districts. The number of inmates accommodated in jail against the authorized capacity of 100 inmates is 114. This means that jails are overcrowded and already meagre resources are shared amongst greater number of people. One of the primary reasons for overcrowding of prisons is the pendency of court cases. Additionally, Jharkhand has the least number of prison staff. According to Prison Statistics 2015, the highest number of inmates per prison staff was reported from Jharkhand. Understaffing and overcrowding goes hand in hand in Jharkhand prisons.

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Occupancy rate in Jharkhand Prisons

In a related development, a Public Interest Litigation (PIL) filed by the Persecuted Prisoners Solidarity Committee [PPSC] on under-trial prisoners in the jails of Jharkhand brought a ray of hope to an otherwise grim situation. The petition has alleged that Adivasis, Muslims, Christians and Dalits, thousands in number have been languishing in prison because their trials have been deliberately prolonged and seeks to expedite criminal proceedings long pending before criminal courts in Jharkhand.

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Percentage of Undertrials vs their population

The court had asked the prisons to place before the court the details of all under-trial prisoners in all the jails of the state. The latest hearing was on August 8, 2018 in which, despite the Supreme Court’s order on conducting speedy trials, Jharkhand seems in no hurry to act. States have the primary role, responsibility and authority to change current prison laws, rules and regulations. The state must bring back its focus on the cardinal principle of criminal law in India where bail is the rule and jail the exception!

*Associate consultant with the Policy & Development Advisory Group, a policy firm based in Ranchi and New Delhi; post-graduated from the Tata Institute of Social Sciences, Mumbai, currently working in Jharkhand

Posted in Law

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