“It is high time that the public conscience is awakened and the government as well as the judiciary begins to realise that in the dark cells of our prisons there are a large number of men and women who are waiting patiently, impatiently perhaps, but in vain, for justice – a commodity which is tragically beyond their reach and grasp. Law has become for them an instrument of injustice and they are helpless and despairing victims of the callousness of the legal and judicial system. The time has come when the legal and judicial system has to be revamped and restructured so that such injustices do not occur and disfigure the fair and otherwise luminous face of our nascent democracy.”
Justice P. N. Bhagwati
‘Under trail prisoners’, they are the most important victims of this slow legal system which exists in India. The terms like judicial delay, backlog and pendency have not only become common in case of normal criminals in India but also the under-trails who are not convicted but remains in judicial custody for investigation.
The Judiciary has a Constitutional role to protect the human rights. In the recent past, mainly the Supreme Court, has been very vigilant against infringement of the rights of the under trail prisoners. Actually, there are three stages in a criminal procedure, these are:
An ‘accused’ becomes a ‘convict’ when it has been proved through the trail in the Court of law that he or she has committed the crime. So the prisoners who are not proved either guilty or innocent by the Court that is those prisoners who are waiting for their trail are called under-trails. UTRC (Under Trail Review Committee) is a committee which periodically reviews cases of under-trails in India and is empowered to recommend to the concerned trail-court, release, appropriate action in each case in order to prevent unnecessary detention.
The problem of under-trial prisoners is a serious one which affects the right to a fair trial as borne out by statistics. “The National Crime Records Bureau, Prison Statistics in India 2012, shows that the number of under-trials is 2,54,857, as compared to the number of convicts which is 1,27,789”.
The question of protecting the rights of under-trails comes only when these certain rights are violated or denied. So, it is important to know the problems faced by Under-trails in order to analyse how these rights are denied or violated. The problem of Under-trail prisoners has taken new turns and assumed many propositions in the recent years. Indiscriminate arrests take place, many innocent people are convicted and they wait for their trail date and there exists an unsatisfactory bail system. There are many under- trail prisoners who are sentenced for long periods. There is delay in investigation. These are the various problems faced by under trails in India. Since these problems exist there are rights like Right against Adjournment, Right against prolonged detention, Right to bail, Right to compensation and many more.
ISSUES FACED BY UNDER TRIALS
Justice doesn't only mean to punish the convicts but also mean not to punish the flawless. The conditions in which the under-trail prisoners live is miserable. Many under-trails are suffering in prison for a longer time than the maximum term which was directed to them. This is seen in various States all around India. The under-trail prisoners face a lot of problems some of which are:
People who are poor and living in poverty are the people who are under trail prisoners in India.
Weak rules and regulations and lack of proper investigation cause innocent people to be under trail in the court of law.
Many pending cases in the court of law have increased therefore increasing the trail period for the under-trail prisoners which violates the right of speedy trail.
Existence of unsatisfactory bail system has affected some basic rights of liberty and life to the under-trails.
The low number of Judges and inadequate prosecution system has been a reason for delay in disposal of criminal cases related to under-trails.
A classic example of innocent and poor illiterate people living as prisoners in jail is that in 1996, Mohammad Ali Bhat who was only 25 years old and worked as a shawl trader was taken to Delhi and made an accused in the Lajpat Nagar blast case and then he was even taken to Rajasthan and made accused in the Samlethi blast case. He had suffered in jail for 23 years and finally in 2019 the Court declared Mohammad to be innocent.
So, Mohammad Bhat was found guilty when he was 48 years old. He had lost 23 years of his life in jail with no fault of his. Innocent people are made accused of a crime, slow trail process, failing bail system are all the problems which the under-trails in India are facing. The problem of bail system is what causes long pre-trail detention. This is a failure in India because of the criminal Procedure Code which doesn’t define the term bail properly. One such case related to the bail system in relation to under-trails is “State of Rajasthan v. Balchand” in which Justice Krishna Iyer gave the theme “Bail or Jail”.
One more problem is that money is what determines and decides the period in jail. Many under-trails being in a very poor financial position and being economically backward are suffering in jails and the period they suffer in jail is unfortunately now a days based on their ability or lack of it to pay the bail fee but not on the nature of crime they have committed. Delayed investigation is another problem. Many under-trails languish in the jail due to delay in investigation by the police. Investigation which is the duty of the police is not done in a proper and a full-fledged manner and charge sheet is filed in time. To show the progress in investigation the police often resort to unjustified and unnecessary arrests because of which innocent people suffer. This situation of under-trails is not only in India but even in many foreign countries.
THE INHUMANE CONDITIONS IN WHICH UNDER-TRAILS LIVE IN PRISONERS
The conditions in which under trail prisoners live is miserable. Prisoners were chained, some are even amputated. Some are caged and whipped. Sunil Batra v. Union of India the Court held that it is inhumane to fetter prisoners in irons. It is unjustified to use such means to prevent escape of the prisoner from jail. But in the case of Prem Shankar Shukla v. Delhi Administration the plaintiff who was an under-trail was handcuffed. Justice Krishna Iyer laid importance and stressed on the point that handcuffs should not be used in routine but they should only be used when the prisoner was “desperate”. He said that handcuffing was inhuman and therefore unreasonable. It was also agreed that this type of treatment of the under-trail prisoners was observed to be sadistic, demoralising, capricious and despotic and therefore causes violation of article 14 and minimum freedom of movement mentioned under Article 19 can also not be deprived by using handcuffs.
The presence of such problems raises questions on the responsibility and the role the two important branches of the State that is the ‘Judiciary’ and the ‘Executive’ play. These branches protect and safeguard the life and liberty of the citizens of the country. The presence of various issues raise a question to these branches and the Judicial institutions as to who is to be made liable for the increasing number of days spent by individuals in jail when there are methods available for release of under-trails.
ROLE OF JUDICIARY IN PROTECTING THE RIGHTS IF UNDER TRAILS
A crucial part is played by the judicial organs which are the Supreme Court and the High Court to reduce the issues faced by under-trails in India. These judicial institutions direct the Government to take proper measures with respect to under-trails.
FREE LEGAL AID
Every person in general has a right to free legal aid. The citizens of India are entitled to free legal aid and specially the under-trails. The under-trail prisoners may not be able to engage a lawyer to various reasons, but the main reason is poor financial position. If the right to free legal aid is not provided to the poor under-trails, then they cannot engage a lawyer to defend themselves that means the trail procedure is no more, fair and just.
“Hussainara Khatoon v. Home Secretary, State of Bihar” is a landmark case where the Supreme Court held that it is not reasonable to have a procedure that does not provide legal aid to a poor under-trail prisoner so that he can fight his case, defend himself with the help of a lawyer and get fair and just trail. The Supreme Court instructed the Government to provide free legal aid service in deserving cases. “M.H Haskot v. State of Maharashtra” is another case in which the court held that it is the duty of the Government to provide free legal aid to any under-trail prisoner or an accused.
This human right is a very important right which should be given to under-trail prisoners. Many under-trail prisoners because of slow trail process bear and suffer in jails for longer time than their maximum sentence. Hussainara Khatoon v Home Secretary is the case which again dealt with speedy trail and the Court clearly mentioned that if a person is deprived the right of speedy trail, such deprivation would amount to violation article 21 which talks about right to life and personal liberty. In “Abdul Rahaman Antulayv R. S Nayak” the Court gave guidelines related to speedy justice to under trails and these guidelines were reaffirmed by the Apex court in “P.Rama Chandra Rao v. State of Karnataka”. Many provisions have been incorporated in the Cr.P.C related to speedy trail which help to improve the condition of under-trails in India.
RIGHT TO EXPRESSION
Every citizen of the country has freedom to express their opinion. Every under-trail prisoner have a right to be heard. “State of Maharashtra v. Prabhakar Panduranga” is a case in which the prisoner was denied from writing and publishing a book. So, this right is entitled to every prisoner under Article 19 (1)(a) of the Constitution of India.
‘Article 21’ of the Constitution of India includes fair and reasonable procedure. Every citizen of the country even though he is accused of a crime should be given an opportunity to be heard and be a part of a fair and just procedure. This right is entitled to every citizen under Article 21 of the Constitution which is related to ‘right to life and personal liberty’. “A.K Gopalan v. State of Madras” was the case where the Supreme Court clearly mentioned that the words “procedure established by law” include fair and just procedure.
The Judiciary must protect the fundamental rights as guaranteed in the Constitution of India. A Law Commission Report was also passed by the Government which safeguards the rights of the under-trail prisoners. This 2017 Law Commission report facilitates a reduction in number of under-trails in prison.
Amendment of Cr.P.C had taken place in 2005 to include Section 436A. This Section clearly explains that when an under trail has served half the sentence given to him by the Court, he can be set free on a personal bond as long as the act which that particular individual was charged for is not punishable with a capital punishment. A Public interest litigation was recorded under the watchful eye of the Supreme Court in the same year in the case of “Bhim Singh v. Union of India”, looking for viable execution of Section 436A. The Ministry of Home Affairs in 2012 gave a bunch of mandates to lessen congestion of jails by guaranteeing that States direct intermittent observing to distinguish under trials qualified for discharge under Section 436A.
Freedom is of vital worth and significance. All offices of the justice framework should meet up and work amicably to guarantee the successful acknowledgment of lawful rights to each person in a correctional facility. This can be done when each person belonging to the judicial and justice framework is made responsible with governing rules by different people who are also a part of this judicial system, given every one of them perceive their responsibilities and duties in regard to a person in conflict with law. The law has a few ways and procedures to guarantee that a charged individual can be set free from prison. The justice system and the judicial institutions furthermore has provisions to guarantee that individuals particularly weak ones like the extremely poor, disabled, intellectually sick, aged, kids and ladies from becoming mixed up in the framework and bearing a sentence more than actually given to them. An effective bail system, good and responsible police investigation system, more number of judges to handle various cases which encourages speedy trail is what would make the judicial system more systematic and thereby improve the condition of under-trails.
Vijay Raghavan, Undertrial Prisoners in India Long Wait for Justice, 4 Economic & Political Weekly, 17 (2016).
Juhi Saxena, Human rights of Undertrails in India, Volume 2, Issue 5, WHITE BLACK LEGAL L.J 5 (2020).
Madhurima, ‘Undertrial prisoners and the criminal justice system’, Journal of Human Rights Initiative, 2010.
Undertrials, Journals of India, Nov 12, 2018. https://journalsofindia.com/undertrials/
Niranjan Sahoo &Vivek Jain, Justice System In Crisis: The Case Of India's Undertrial Prisoners, ORF ISSUE BRIEF, August 2015.
Sohu, Conditions of Undertrials Prisoners in India With Reference To State Of Haryana, Law Bulls, August 24, 2018.
NEWS PAPER ARTICLES AND LAW COMMISSION REPORT
Mukesh Rawat, Poor, young and illiterate: Why most Indian prisoners fight long lonely battles for justice, India Today, November 15, 2019. https://www.indiatoday.in/india/story/undertrial-prisoners-in
Law Commission of India, Report No. 268: Amendments to Criminal Procedure Code, 1973 – Provisions Relating to Bail, 2017, https://lawcommissionofindia.nic.in/reports/Report268.pdf
Surendra Kumar Pachauri, Prisoners and Human Rights, APH Publishing, pg 7-9, 1999.
NAME – MARAM DEEPIKA
COLLEGE NAME – SYMBIOSIS LAW SCHOOL, HYDERABAD
YEAR OF STUDY – 2020-2025 (1st year currently)