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The Plight of Undertrial Prisoners in India: Long Haul for Justice

"Justice Delayed is Justice Denied"

Indian jails are crowded with undertrial prisoners whose pleas are rarely heard. They constitute a significant portion of the prison population. An undertrial prisoner is an accused person who is kept in judicial custody during the course of hearing the case in the court. They are the ones who have been accused of a crime but have not yet been convicted. By virtue of 78th Report of Law Commission, a person retained in court custody for investigation is considered as an under:trial.

Many undertrials in India are wrongly confined on frivolous or fabricated charges. Thousands of these prisoners, who are presumably innocent, end up spending years in jail because of delay in trial and unproven charges in a court of law. Many of them spend years together in jails before the trial starts, and the courts become mute spectators to such delayed trials. Most of the undertrial prisoners are poor and unaware of their rights, which is preventing them from availing their constitutional rights and accessing justice.

The number of undertrial prisoners in India is substantial, accounting for a significant percentage of the total prison population. According to available data, around 70% to 75% of the prison population in India comprises undertrial prisoners. These statistics reveal the high proportion of individuals waiting to prove their innocence.

The Prison Statistics India report of the National Crime Records Bureau, states that three out of four prisoners in Indian jails are undertrials. The latest data shows that, out of the 4,88,511 Indian prison inmates, 3,71,848 were undertrials. These undertrial prisoners mostly belong to the minority community. According to the government, among undertrials, about 20% were Muslims, while 73% were Dalits, tribals or OBCs.

Legislations governing the Rights of Under-trial Prisoners:

  • Prison Act and Prison Rules: Every state in India has its own Prison Act and Prison Rules that govern the management, administration, and treatment of prisoners. These laws outline the rights, entitlements, and obligations of prisoners, including provisions for their healthcare, accommodation, food, and general well-being.
  • Code of Criminal Procedure, 1973: The CrPC lays down the procedures and guidelines for the conduct of criminal trials in India. It includes provisions related to arrest, custody, remand, bail, trial procedures, and other aspects relevant to prisoners. Section 167 provides provisions for the detention of undertrial prisoners during the investigation period, including the maximum duration of such detention.
  • Section 436 and Section 436A deal with bail provisions for undertrial prisoners, including provisions for granting bail on personal bond and the release of undertrial prisoners.
  • Indian Penal Code, 1860: IPC defines various offenses and their corresponding penalties. It provides the legal framework for criminal conduct and punishment for those convicted of offenses.
  • Transfer of Prisoners Act, 1950: This act provides for the transfer of prisoners from one state to another or between different prisons within the same state. It sets out the procedures and guidelines for the transfer of prisoners based on certain considerations, such as the prisoner's welfare and security.
  • Juvenile Justice (Care and Protection of Children) Act, 2015: This act specifically addresses the rights, care, and rehabilitation of children accused of offenses. It provides for separate facilities and treatment for juveniles in conflict with the law, focusing on their education, welfare, and reintegration into society.
  • Legal Services Authorities Act, 1987: This act aims to provide free legal aid and services to the underprivileged and those unable to afford legal representation, including prisoners. It establishes the National Legal Services Authority (NALSA) and State Legal Services Authorities (SLSAs) to facilitate legal aid and representation for prisoners.
  • Probation of Offenders Act, 1958: This act provides for the release of certain offenders on probation instead of serving a prison sentence. It aims at the reformation of the offenders to reintegrate them into society.
  • Human Rights Laws and International Conventions: The Constitution of India and various international human rights conventions ratified by India, such as the International Covenant on Civil and Political Rights (ICCPR), provide a framework for protecting the rights of prisoners. These include the right to life, dignity, humane treatment, and protection against torture or cruel, inhuman, or degrading treatment or punishment.

Rights of Undertrial Prisoners

Right to be released on bail:

  • Section 436:A of the CrPC: If a person accused of a bailable offence is arrested or detained without warrant and is prepared to give bail, such person shall be released on bail. Further, the undertrial prisoners who have served half the maximum sentence in prison possess a right to be released under the said section.
  • Cases pending for more than 2 years: The Supreme Court in cases like Supreme Court Legal Aid Committee v. Union of India 1994 SCC (6) 731 and in Shaheen Welfare Assn. v. Union of India 1996 SCC (2) 61, directed that the undertrial prisoners charged with murder can be released on bail if their cases were pending for two years or more. Similarly, directions were given to release persons charged with comparatively minor offences, such as theft, cheating, etc., if they had been in prison for more than a year. However, this order was limited to the cases pending at the time of the order.
  • Police investigation has not been completed within stipulated time (Section 167, CrPC): Where the investigation has not been completed within 90 days for offences punishable with death, life imprisonment or imprisonment for a term of not less than ten years, and 60 days for all other offences, it is mandatory upon the Magistrate to release the prisoner on bail, provided he is ready to furnish bail. This provision shields the accused from suffering incarceration on account of the inability of the investigating agency to wind up its investigation.

Right to Speedy Trial:

Under trials prisoners holds the right to get speedy or fast trial. Speedy trial is a fairly rapid trial that is part of Article 21, right to life and freedom. In Hussainara Khatoon v State of Bihar, the Supreme Court noted that, unless such trials guarantee the prompt trial for deciding the person's guilt, a trial prescribed by the statute would not be "reasonable , fair or jus" by preventing a person from enjoying his freedom.

Right against Solitary Confinement:

Solitary confinement means the complete isolation of a prisoner from other co: prisoners and segregation from any kind of human contact. It provides separate confinement space for a prisoner, with limited access to other prisoner with the administration and discretion of the jail authorities. The maximum time of solitary confinement is three months in whole.

Right against Handcuffing of Prisoners:

An arrested person or under:trial prisoner should not be subjected to handcuffing in the absence of justifying circumstances. In the case of Prem Shanker Shukla Vs Delhi Administration, the petitioner was an undertrial prisoner in Tihar jail. The escorts regularly handcuffed him while taking him from jail to Magistrate's Court and back. The trial court directed the concerned officer escorting him to the court and back that handcuffing should not be done unless it was so required. Further, the Supreme Court reaffirmed it and held that handcuffing is inhumane, unreasonable and harsh.

Right to Legal aid and Representation:

An arrested person who does not have the means to send an attorney has the right to free legal assistance. The Supreme Court ruled that free legal services form a basic element of any fair, equitable and reasonable practice for the poor and needy. In Madhav Hayawadan Rao Hosket v. State of Maharashtra, three Justice Bench claimed that the government has a responsibility to provide legal services to persons accused by reading Articles 21 and 39:A, section 142 and section 304 of the IPC. In Hussainara Khatoon v. Home Secretary, Bihar the Supreme Court states that any accused person who is unable, by reason of poverty, indigence or non:communication, to engage the lawyer and obtain legal services shall have a constitutional right to free legal services, and the State is required to provide a lawyer to that person if the requirements of justice exist. This right shall be regulated by constitutional law. The trial itself may be vitiated as contradicted in Article 21 if free juridical services are not given.

Right against inhumane treatment:

Article 21 states that no person shall, other than in accordance with the procedure laid down in the constitution, be deprived of his life or personal freedom. In the case of A.K Gopalan v. Union of India, the communist leader A.K Gopalan was arrested under the 1950 Preventive Detention Act. He challenged to see that his arrest on the ground was legitimate and violated his right to freedom of movement in compliance with Article 19(1)(d), which is the cornerstone of personal freedom conferred by Article 21 of Constitution.

Right to be informed and to meet family members and friends:

In the case of Sunil Batra (II) v. Delhi Administration, the Supreme Court through this case recognized the prisoners' right to see their friends and family. The Court encouraged its visits but was subject to search, discipline and other safety requirements. The family visits provide comfort to the prisoners who are deprived of human interactions. These rights are intrinsic and need to be recognized and protected by Articles 21 and 22(1) of the Constitution.

The Undertrial Prisoners are entitled to separate accommodation and special rights relating to food, clothing, work and visits.

The problems of undertrial prisoners in India are a failure on the part of the government to maintain a welfare state. Despite, numerous legislations in place to mitigate the problem of the undertrial prisoners, it is still rampant due to the flaws in its execution. Indiscriminate arrests, Failure to pay Surety, Slow investigation and trials, Lack of use of provisions, and Failure of Legal aid schemes have further led to the delay in undertrials. It is vital to protect the rights of the undertrial prisoners to meet the ends of Justice.

The undertrial prisoners should be lodged in separate institutions away from convicted prisoners. There should be proper and scientific classification even among undertrial prisoners to ensure the segregation of first:time and petty offenders from full:fledged and hardcore criminals. The undertrial prisoners should be produced before the Magistrates on the assigned dates of the hearing. This can effectively solve the problem of delayed trials. Therefore, must ensure to compensate the victim adequately in case of violation of any fundamental right in case of any mishappening.

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