Undertrial prisoners: India
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May 08 2015
At least 2.54 lakh undertrials, many of whom may be innocent, are made to languish behind bars for their failure to procure bail.
It has been estimated that out of 3.81 lakh prisoners across the country , about 2.54 lakh are undertrials. Only one-third, or 1.27 lakh, of those in jail have been convicted and are serving their sentence. In British India, the ratio of undertrials to convicts was just the reverse, where two-thirds of the prison population was of convicts. According to the government's own assessment, many of these undertrials have spent more time in jail than the sentence they would have got had they been convicted for the crime they were arrested for, which is against the law of the land.
Some of these undertrials are petty thieves and ragpickers and can't afford bail bond.In many cases, undertrials have been jailed for more than a decade without cases being listed for trial. In September 2014, the SC had set a deadline of December 2014 to release all undertrials who had served half of the maximum sentence prescribed for the offences they had been charged with in FIR against them on personal bond. Prior to the SC order, the home ministry too had issued advisories to states and all 24 HCs asking them to ensure implementation of Section 436A of the Code of Criminal Procedure that mandates release of such undertrials.
But this was not the first time that the government had raised the matter with state governments and high courts and brought to their notice the CrPC provisions. “Such advisories were sent to state governments and HCs earlier to implement the amendment brought in CrPC but this was never followed,“ a source said.
60% of undertrials spend more than three months in jail
According to government data, over 60% of undertrials spend more than three months in jail before they can secure release. The prolonged incarceration is due to the inability of these undertrials to get bail.
Close to 1.75 lakh of 2.78 lakh people facing criminal charges are unable to secure bail before three months. Over 40% (1.1 lakh) of undertrials take more than six months to secure bail, while over 30,000 spend more than two years and over 64,000 spend more than a year in jail before they are released on bail.
The figures point to a deeper malaise in the criminal justice system as bail, pending conviction, is considered a right under Indian law. Even in cases of heinous nature, an undertrial is entitled to bail, if not immediately, then after a chargesheet is filed by an investigating agency . Police get three months to file charges in cases under the Indian Penal Code and up to six months under special laws such as Unlawful Activities Prevention Act and Maharashtra Control of Organized Crime Act.
The fact that over 60% are incarcerated even after charges are filed points to the fact that only those with deep pockets to hire talented lawyers and fight long-drawn legal battles are able to secure bail.
Colin Gonsalves of Human Rights Law Network said that though bail was a right of every individual, it was largely available to the rich. “When it comes to rich people, the court has double standards. The rich even get anticipatory bail. Salman's case is a shocking case of miscarriage of justice and consideration based on class. First, it's a fit case where he should have got 10 years in jail. Two, why should his bail plea be heard expeditiously when there are hundreds such applications pending in high courts. Why should he be allowed to jump queue? It sets a bad precedent,” he told TOI.
Delhi, 2018: Unnecessary arrests
The tendency of police to invoke extra penal provisions, more so in cases of sexual offences, results in denial of bail and languishing of undertrials in prison.
This is a preliminary finding of a two-member panel set up by the Delhi high court to examine the issue of women undertrials languishing in prisons in the city for several years.
In a report the panel told HC that the police, while registering FIRs in sexual offence cases, often also adds charges relating to trafficking and under the Protection of Children from Sexual Offences (POCSO) Act, which make it difficult even for a woman accused to get bail.
Set up by the high court in November last year, the panel gave its report after examining the records of several women lodged in the Tihar jail during their trial in connection with rape and other cases.
The panel of professors Mrinal Satish and Aparna Chandra from the National Law University said that magistrates determine whether an accused should be granted bail based on the stand of the police and prosecution.
Apart from that, the panel also said that decisions of the Supreme Court and the high court with regard to bail are not being followed by the lower courts.
The report said that the only viable and longterm solution to the problem of extended undertrial incarceration was “systemic reform that reduces unnecessary arrests”.
The panel sought directions to the police to not register FIRs or file charge sheets against women for offences of rape, molestation, voyeurism, stalking or any of these crimes coupled with the penal provision of common intention, “unless they are accompanied by an allegation of abetment or conspiracy to commit these offences.”
The panel’s report was filed in a PIL initiated by the high court on its own pursuant to a letter received from Supreme Court judge Kurian Joseph who recieved letters from around 600 women prisoners from Tihar jail.