Forget the much-touted axiom – innocent unless proved guilty – almost 75 % of the people languishing in Indian jails are undertrials. They have not been convicted of any crime by a court of law and are detained in prisons pending trial, investigation or inquiry.
The maximum numbers of undertrials are locked up in Uttar Pradesh jails followed by Bihar and Maharashtra.
More than 65 per cent of undertrials belong to the socio-economically backward classes, many of whom may be entitled to bail, but continue to languish in jail because they cannot afford a lawyer who knows the judge if not the law.
Poverty (itself) is crime: Rich get bail, poor remain in jail
It is common knowledge that poor people are often at the receiving end of excesses by the law enforcement authorities. A poor person is invariable the first to be locked up for being a thief or prime suspect in a crime. As George Bernard Shaw once said, “poverty (itself) is crime.”
Commenting on the trend the Law Commission led by former Supreme Court judge, Justice B.S. Chauhan said, “[i]f more than 50% of all detainees, and in some countries, more than 70% are in pre-trial detention…something is wrong. It usually means that criminal proceedings last far too long, that the detention of criminal suspects is the rule rather than the exception, and that release on bail is misunderstood by judges, prosecutors and the prison staff as an incentive for corruption…
The 268th Law Commission report titled “Amendments to Criminal Procedure Code, 1973 – Provisions Relating Bail” observed, “It has become a norm than an aberration in most jurisdictions including India that the powerful, rich and influential obtain bail promptly and with ease, whereas the masses/the common/the poor languish in jails.”
“Historically, bail was a tool to ensure the appearance of the person accused of an offence at trial or to ensure the integrity of the process by preventing such a person from tampering with evidence or witness. Under the Criminal procedure Code of 1973 (hereinafter Cr.P.C.), the police, prosecutors magistrates and judges have been enjoined to exercise the best judgment and discretion within the confines of the law for ensuring the appearance of the person accused of an offence without jeopardizing the interests of the society,” the Law Commission report added.
The Law panel suggested amendments in the Criminal Procedure Code for early release of undertrials on bail. The report went on to add that if the undertrials were not kept away from the convicts during the period of detention– this could make hardened criminals out of them.
As per law 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.
Apart from 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.
‘Unnecessary’ arrests
According to the latest National Crime Records Bureau statistics, there are 1,350 prisons in the country consisting of 617 Sub Jails, 410 District Jails, 144 Central Jails, 86 Open Jails, 41 Special Jails, 31 Women Jails, 19 Borstal School and 2 other Jails. The highest number of jails was reported in Rajasthan (144) followed by Tamil Nadu (141), Madhya Pradesh (131).
Delhi has the highest number of Central jails (14) in the country. Uttar Pradesh has reported the highest number of District jails (62). Tamil Nadu has the highest number of Sub-jails (96).
The issue of undertrial prisoners first came to the spotlight in 1979, when the National Police Commission exposed that a majority of the arrests are for “very minor or frivolous grounds”. Even otherwise –it has been observed over the years that over 60 per cent of arrests are unnecessary and account for 42.3 per cent of jail expenditure. This is also one of the reasons for the overcrowding of prisons.
Echoing almost similar sentiments Law commission of India in its 177th report observed, “The unnecessary incarceration of undertrials in jails is another disturbing feature of our criminal judicial system. The decisions of the Supreme Court and High Courts and the reports of the National Police Commission say that a majority of the inmates of jail are undertrials. Many of them languish in jails because they are not able to either move for bail or to furnish the bail prescribed by the court – again a consequence of poverty. Number of instances have been pointed out by courts where undertrials have been kept in jails for periods longer than the maximum period for which they could have been sentenced had they been found guilty of the offence with which they were charged.
According to the National Crime Records Bureau, the undertrials continue to languish in jails for years because of delay in conducting 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 (Vakil Prasad Singh v. State of Bihar).
In Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, it was held that undertrials can be released on personal bond without any surety if they have undergone detention for half or entire of the maximum period of imprisonment for that offence. In some cases the courts have granted bail to undertrials who have spent more time in jail than the sentence they would have got had they been convicted.
As per the Uday Mohanlal Acharya v. State of Maharashtra, undertrial prisoners have the right to be released on bail (even for non-bailable offences), if their judicial custody exceeds 90/60 days, but no charge sheet has been filed by the police.
This is because the undertrials 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.
Another reason for the overwhelming number of undertrials is the non-availability of police personnel to escort them to the court and the slow disposal of cases in the courts of law.
Several judgements have also upheld the right of undertrials to a 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.
