The term ‘Under-trial’ denotes an unconvicted prisoner i.e. one who has been detained in prison during the period of investigation, inquiry, or trial for the offense s/he is accused to have committed. The share of undertrials lodged in prisons for more than a year has increased over time as the percentage of cases pending judgment in courts has also increased sharply.

The continued incarceration of under-trials in overcrowded prisons represents a failure of our democratic society as well as the rule of law. After the death of Stan Swamy in custody, questions about the conditions of jails and treatment of the incarcerated have been raised once again.

What is the status of under trial in India?

• 65% of the people in Indian jails are under trials – those detained in prisons during trial, investigation or inquiry but not convicted of any crime in a court of law.
• The share of the prison population awaiting trial or sentencing in India is extremely high. Two of every three persons incarcerated in India have not yet been convicted of any crime.
• Comparing this with India, it is 11% in the UK, 20% in the US and 29% in France.
• More than 25% of under trial prisoners in 16 out of 36 states and union territories have been detained for more than one year in 2014.
• The number of convicts in jails grew by 1.4% from 2012 to 2013, but the number of under trials shot up by 9.3% during the period.
• Men make up more than 90% of all prison inmates. Nearly 2,000 children of women inmates live behind bars, 80% of those women being under trials.

What are the issues involved in undertrials in India?

The report ‘Justice Undertrial: A Study of Pre-trial Detention in India’ analyzed data available with the National Crime Records Bureau and records collected by the human rights organization from the country’s 500-odd district and central jails through Right to Information petitions.

The issues involved in under trials are:

(1) Mostly Muslims, Dalits, Adivasis – Marginalized communities form the bulk of the under-trial population in India.

(2) Rarely produced in a court-Records show that in states such as Rajasthan Uttar Pradesh and Karnataka under-trials are routinely not produced in court.

(3) Inadequate legal aid –

• According to the report, at least 23 prisons reported having no legal aid lawyers.
• Haryana has the highest number of legal aid lawyers in the country but the number of prison visits by each lawyer per month is strikingly low.
• This shows that legal aid is not efficiently provided in most of the country’s prisons.

(4) Legal aid lawyers are poorly paid – The paucity of legal aid lawyers is hardly surprising given the poor remuneration they receive for filing bail applications.

(5) Wrongly released –

• If under trials are held for a period equal to half their potential sentence then under Section 436A of the Code of Criminal Procedure they are eligible for release on a personal bond.
• After release, they are required to appear at all future court dates. However, the report states that a large number of undertrials have been incorrectly released under the law.

(6) Supreme Court guidelines on bail are not followed – Some of the judges even at the High Court level are not following the guidelines laid down by the Supreme Court on bail and grant of the same is dependent upon the attitude of each judge. The right to bail is denied even in genuine cases.

(7) Politicization of Legal Aid Schemes – In the absence of a system that takes a proactive role in providing legal services to prisoners their right to effective Legal Aid is also violated due to the politicization of legal aid schemes as many lawyers are hired on political consideration who get a fixed salary without the pressure of disposing-off cases at the earliest.

(8) Sanitation, unhygienic food, and health problems –

• No serious effort is taken about basic human rights once a person falls behind bars. There is a lack of sanitation and many times food offered is not worthy of even offering to the animals.
• There are cases of sexual violence, especially in isolated environments people tend to forget all boundaries.
• Homosexuality leads to possible HIV/STD cases. For women prisoners, custodial sexual exploitation by fellow prisoners and a male security guard is also prevalent. There is a clear lack of respect for human dignity here.
• In 1994, an IPS officer Kiran Bedi tried to offer condoms to prisoners to control STD cases, but it was taken back due to huge protest seen thereafter.

(9) Staff crunch –

• While 33% of the total requirement of prison officials still lies vacant, almost 36% of vacancy for supervising officers is still unfulfilled. The manpower recruited inside this prison is almost 50% short of its actual requirement.
• States like Uttar Pradesh, Bihar, and Jharkhand have the most scantily guarded jails, seeing over 65% of staff vacancies among jailers.
• In the absence of adequate prison staff, overcrowding of prisons leads to rampant violence and other criminal activities inside the jails.

(10) Lack of use of provisions – Even though the provisions to avoid unnecessary detention of prisoners have been in existence for years, they are not implemented because of the following reasons:

1. Most prisoners are not only unaware of their right to seek release but also too poor to furnish surety.
2. Lack of sympathy by the administration.

(11) The Right to Speedy Trial – as recognized by the Supreme Court in Hussainara Khatoon vs. Home Secretary Bihar is violated due to protracted delays.

Reasons behind the delays in trials:

• Systemic delays
• Grossly inadequate number of judges and prosecutors.
• Absence or belated service of summons on witnesses.
• Presiding judges proceeding on leave.
• Remands being extended mechanically due to lack of time and patience with the presiding judge.
• Inadequacy of police personnel and vehicles which prevents the production of all prisoners on their due dates.
• Many a times the escorting police personnel merely produce the remand papers in the courts instead of actually producing the prisoner in front of the magistrate.

State of Indian Prisons

The ‘Prison Statistics India 2015’ report was released by the National Crime Records Bureau (NCRB). The data are given in the report tell us about the following things regarding the state of Indian prisons:

(1) The problem of overcrowding – The report calls overcrowding “one of the biggest problems faced by prison inmates.” It results in poor hygiene and lack of sleep among other problems.  Dadra & Nagar Haveli is reported to have the most overcrowded prisons followed by Chhattisgarh Delhi and Meghalaya.

(2) Two-thirds of the prisoners are under trial – Sixty-seven per cent of the people in Indian jails are undertrials — people not convicted of any crime and currently on trial in a court of law. Among the larger States, Bihar had the highest proportion of undertrials followed by Jammu & Kashmir, Odisha, Jharkhand, and Delhi.

(3) Foreign Convicts – Over two thousand foreign convicts were lodged in various jails in India at the end of 2015. The highest numbers of foreign convicts were in the jails of West Bengal followed by Andaman & Nicobar Island.

(4) Prisoner Profile – Seventy per cent of the convicts are illiterate or have studied only below class tenth.

(5) Capital Punishment – Over a hundred people were awarded the death penalty (101) in 2015. Forty-nine were commuted to a life sentence.

Custodial death in India

• Open secret – In a country where custodial torture and killing is an open secret, it is baffling that we still do not have a domestic law that enables torture prosecution by accounting for the particularities of custodial torture.
• There were on an average 5 custodial deaths per day in India during 1st April 2017 and 28th February 2018.
• As per the report of National Crime Records Bureau (NCRB), the number of deaths in police custody between 2001 and 2018 was 1,727. But, only 810 cases were reported, 334 were charge-sheeted out of which just 26 policemen were convicted.
• Legal burdens – If a person dies in police custody the burden should be on the police to show that they are not responsible for it, the law still requires the prosecution to prove that the police caused the death.
• UNCAT ratification – India’s political commitment to address torture is symbolized by its failure to ratify the UN Convention Against Torture, and thereby putting itself in the list of only 19 countries to have not adopted it.
• Magisterial inquiry – Besides the usual police investigation into a custodial death, the law mandates an independent magisterial inquiry.
• Institutional Apathy – It is perhaps a reflection of our institutional apathy that such inquiries have happened in only about 20% of custodial deaths. Prosecution of police officials for custodial torture requires the sanction of the government.

Stan Swami case
Father Stan Swamy, the 83-year-old activist, was arrested under the Unlawful Activities (Prevention) Act (UAPA) in October 2020 by the National Investigation Agency. He is alleged to have been involved in the 2018 Bhima Koregaon violence in 2018 and his links with Maoists. Father Swamy reportedly made an application to be provided with a sipper and straw as he was unable to hold a glass as he was suffering from Parkinson’s disease. His request was inexplicably deferred for 20 days. The NIA later informed the court that it did not have a straw and sipper to give to him. The court has sought a report from the jail authorities on allowing Father Swamy to receive a straw and sipper at his own cost. After this, he had been provided with a sipper and straw by the jail authorities. The above events demonstrate the insensitivity of legal procedures. Apart from this, it outlines another fundamental issue which is the rights of prisoners with disabilities. The death of Swamy represents negligence of the prison administration as well as a systematic failure in our legal and prison system. The injustice in his case is magnified by the fact that he still awaits trial. The fundamental tenet on which Indian criminal law operates is that an accused is presumed innocent until proven guilty. His guilt or innocence is ultimately a matter for the court to decide. But the denial of his rights by the justice system not only constitutes a legal wrong but also displays an absence of compassion.  

Way forward

• Under trials should be lodged in separate institutions away from convicted prisoners. There should be proper and scientific classification even among undertrials to ensure the contamination of first-time and petty offenders into full-fledged and hardcore criminals.
• Establishment and strengthening of fast-track courts.
• Provisions of Section 167 of the CrPC with regard to the time limit for police investigation in case of accused undertrials should be strictly followed by both the police and courts.
• Automatic extension of remands has to stop. All undertrials should be effectively produced before the presiding magistrates on the dates of the hearing.
• Video conferencing between jails and courts should be encouraged and tried in all states beginning with the big Central jails and then expanding to District and Sub jails.
• Police functions should be separated into investigation and law and order duties and sufficient strength be provided to complete investigations on time and avoid delays.
• Alternatives to imprisonment should be tried out and incorporated in the IPC.
• Remand orders should be self-limiting and indicate the date on which the undertrials would be automatically entitled to apply for bail.
• Computerize the handling of criminal cases and with the help of the National Informatics Centre develop programs that would help in managing pendency and delay of different types of cases.
• There should be an immediate increase in the number of judges and magistrates in some reasonable proportion to the general population.