UNDERTRIALS IN JAILS: THE IDEA OF INJUSTICE

By Yogesh Vajpeyi (Guest Writer)

Commenting on pending cases under the Narcotics Drugs and Psychotropic Substances Act, the Supreme Court last month came out with a pithy comment on the plight of the undertrial prisoners languishing in Indian jails: “The laxity with which we throw citizens into prison reflects our lack of appreciation for the tribulation of incarceration; the callousness with which we leave them there reflects our lack of deference for humanity.”

According to the latest National Crime Records Bureau figures, the percentage of undertrials in Indian jails was 64.7 in 2011. In states like Andhra Pradesh, Bihar and Meghalaya, the percentage  exceeds 80. Most of them suffer prolonged incarceration even in petty criminal matters merely for the reason that they are not in a position, even in bailable offences, to furnish bail bonds and get released.

Apart from the Prisoners Act, 1984, there is a Model Prison Manual in place and the various judicial pronouncements have made it clear that prisoners are entitled to human rights, the most important of which is presumption of innocence till proven guilty. According to the Supreme Court, “When the undertrial prisoners are detained in jail custody for an indefinite period, Article 21 of the Constitution is violated.” Yet, a vast majority are denied these rights because of lack of implementation.

The rub is that most of them are poor, indigent, illiterate or semi-literate. They do not know that they are entitled to free legal aid; that they can be released on personal bond. This has been confirmed by a recent advisory issued by the home ministry to the states. It noted that “only the poor and indigent” are unable to put up bail and thus continue to be in jail for long periods. It also acknowledged that “the lack of adequate legal aid and a general lack of awareness about rights of arrestees are principal reasons for the continued detention of individuals accused of bailable offences, where bail is a matter of right and where an order of detention is supposed to be an aberration”.

It would be a miracle to expect that the judicial system can be reformed adequately to shorten the long list of pending cases. Yet some concrete steps can be taken immediately to mitigate their sufferings.

For a starter, it should be made mandatory for the jail authorities to educate them about their rights and provide them legal aid. The plight of the wrongfully confined prisoners is compounded when jail authorities refuse to release information about them in public domain. Recently, the Maharashtra Information Commission had to intervene to ensure that the 43 prisons in the state put information in the public domain about the number of undertrials in their prisons who have already served half the maximum sentence for the crime for which they have been charged. As a result, a handful of detainees were released.

Following Maharashtra’s example, information about such prisoners should be available on prison websites of all states and Union territories. This should be followed by a thorough scrutiny of the

undertrial prisoners languishing in jails, the offences for which they have been arrested, the punishment for these offences and the period spent by them in jail. It is imperative that state governments and Union territories begin the process of identifying the undertrials entitled for release and start working towards their release.