Undertrial prisoners: India
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Undertrials in jail, 1998-2017
Their age profile
Duration of their imprisonment without conviction
It is not the prisoners who need reformation, it is the prisons - Oscar Wilde said, after spending two years in prison for indecency. The quote aptly sums up the situation of Indian prisons that are overcrowded and understaffed. Only a third of those imprisoned are convicted offenders, while an overwhelming majority are still awaiting trial — the number is as high as 80% in states like Bihar and J&K . Worse, a vast majority of prisoners cannot afford legal help. Latest figures released by the National Crime Records Bureau (NCRB) reveal just how deep the problems are with India’s prisons.
The majority of these undertrials come from the age group that is economically most active i.e. 18-50 years. A mechanism for speedy trials could have ensured against the loss of productivity that this entails.
Although the highest proportion of undertrial inmates are those who are jailed for less than three months, there are many who have had to spend a much longer duration in prison. In 2017, there were 4,876 prisoners who were jailed for more than five years and were still going through with their trials.
Bihar is the worst offender with undertrials comprising 84% of those lodged in jails. The situation is equally abysmal in states like Jammu and Kashmir and Delhi where over 80% of the inmates are still awaiting trials.
According to the NCRB report, the number of crimes has risen in India, however, surprisingly, the number of jails has decreased by 4% between 2016 and 2017. In a special mention, the report singles out Maharashtra, where out of 100 sub-jails, only 43 were active, while the remaining 57 have been shut down. It’s not like the existing prisons in India aren’t filled to the brim — occupancy rates across India’s correctional facilities would be the envy of India’s 5-star hotels as prisons continue to remain overcrowded.
OVERCROWDING IN INDIAN JAILS
The capacity of Indian jails’ has not kept pace with the rise in crime rate and overpopulated states are the worst affected. On an average, jails in India have more inmates than the sanctioned strength and though there has been a slight decrease in overcrowding, jails are still overflowing — the occupancy rate of 115% means there are 15 additional prisoners for every 100.
Of the total 4.5 lakh prison inmates, a little over 4 lakh or 89% are lodged in district and central jails. In 2017, district jails were operating at 129% of their actual capacity, while central jails were operating at 118%. The number of detainees increased from 3,85,135 in 2012 to 4,50,696 in 2017 showing a rise of 17%.
With an occupancy rate of 165%, jails in UP are the country’s most overcrowded. Naxal-hit Chhattisgarh also has a high occupancy rate of 157.2%.
If overcrowding wasn't bad enough, most jails are understaffed. Overall, jails are operating at 68.8% of their sanctioned strength. Vacant posts in jail administration constitute a major challenge for prisons across India. Though, there has been an increase in staff every year since 2013, it has not kept up with the sanctioned strength. Jharkhand fares by far the worst in this respect, as only 33.5% sanctioned posts have been filled in the state. Not surprisingly, the ratio of inmates per prison staff in the state is the worst by quite a distance.
State-wise comparison shows that in 2017, jails in Jharkhand had the highest proportion of vacancy as the state was operating with only 33.5% of the sanctioned staff. The state has 21 prisoners for every staff member, the second-worst state being Uttar Pradesh, which has 14 prisoners for every staff member. On the other hand, almost all sanctioned posts in Nagaland (99.5 %) have been filled. The state has one inmate for every prison staff member.
IN 7 YEARS, NO ONE CONVICTED FOR 700 DEATHS IN POLICE CUSTODY
Every year nearly 100 people die in police custody. What’s worse, there hasn’t been a single conviction for such deaths since 2011. Andhra Pradesh had the highest cases of custodial deaths followed by Maharashtra.
While there are a number of instances of policemen getting chargesheeted in custodial death cases, convictions are rare. Low convictions are partly explained by the declared causes of death.
States like Maharashtra and Kerala have a better than average conviction rate of above 50%. In 2017, Maharashtra had the highest rate of conviction and Andhra Pradesh completed the maximum number of trials.
2013, 14: Undertrials pending
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.
2015: 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.