Long forgotten: India’s pretrial and undertrial prisoners

The country’s jails teem with poor and marginalised people detained without justification.

In this photograph from November 8, 2005, prisoners sit in a cell of Tihar Jail in New Delhi. On September 5, 2014, the Supreme Court ordered jails to free all inmates who have served half their maximum term without trial. | Photo Credit: MANPREET ROMANA/AFP

Since there was no one to furnish a Rs.30,000 surety bond, Jai Parkash, 47, spent over 22 years in judicial custody without a trial. On November 21, Parkash, a stout man with swollen hands and a puffy face, was finally released on bail as part of the remissions granted under “Azadi Ka Amrit Mahotsav”. He sat on a boulder across the road from District Jail, Ambphalla in Jammu and Kashmir, blank-faced, holding a box of sweets close to his chest and eating hungrily from it.

Parkash, a resident of Uttar Pradesh’s Chandauli district, was arrested by the Government Railway Police (GRP), Jammu, in October 2000 under Sections 3 and 25 of the Arms Act, 1959, which are bailable offences. The charge sheet against him read: “The accused seems to be a lunatic and his medical check-up is required for trial.” Since his name was not known to the authorities, his case was given an unusual title: State vs person whose photograph has been placed on the file.

In response to a writ petition filed against his illegal detention, the Jammu and Kashmir High Court observed on September 19, 2022, that “the allegations if taken at their face value present a very sorry state of affairs prevailing in Magistracy, Police and Jail authorities”.

On November 26, 2022, President Droupadi Murmu in her valedictory address at the Constitution Day celebrations held by the Supreme Court brought the spotlight back on overpopulated prisons. “Who are these people languishing in jails?” she asked the gathering that included Union Law Minister Kiren Rijiju and Chief Justice D.Y. Chandrachud. She then replied: “They are the people who don’t know anything about fundamental rights, the preamble, and fundamental duties.”

Members of Popular Front of India, a confederation of Muslim organisations, sit inside a mock prison during a protest rally demanding release on bail of undertrial prisoners from Muslim, tribal and other minority communities, in New Delhi on September 15, 2012. | Photo Credit: V. Sudershan

She referred to excessive litigation costs as a major impediment in the delivery of justice and urged the executive, judiciary, and legislature to jointly evolve an effective dispute resolution mechanism that would eliminate the need for additional jails. “What else I have left unsaid, please understand it,” she concluded.

Experts believe the longstanding problem cannot be solved without police and jail reforms. They say there is an urgent need to redress issues of an understaffed and overworked judiciary, strengthening district legal service authorities, and most importantly, introducing substitutes for money or property-based bail systems in Indian courts.

As per the National Crime Records Bureau, prison overcrowding in 2019 was the highest in the past 10 years. Prison Statistics India report 2021 revealed that the number of convicts in jails decreased by 9.5 per cent, whereas the number of undertrial inmates increased by 45.8 per cent between 2016 and 2021.

Open prisons

Commenting on President Murmu’s remarks, Justice (retd) Madan B. Lokur told Frontline: “We have seen in the recent past that persons are detained without good reason. This has a huge adverse impact on their lives, particularly in the case of young persons. It must stop.” He added that most of the time it is “the poor and the marginalised who get picked up”. He gave the example of Assam, where a sizeable number of people have been declared foreigners. “They have served their sentence but are kept in prison while some are shifted to detention centres that are a euphemism for jails.” Lokur asked: “When will a policy be framed for these unfortunate persons? Are they expected to spend the rest of their life in a detention centre?”

Lokur pointed out that the idea of open prisons must be considered seriously: “Our prisons are hopelessly overcrowded and prisoners in some jails live in subhuman conditions. Sanitation and health are big issues. This simply not does not make rehabilitation possible. And results in adverse consequences and ends up punishing the family of the prisoner as well.”

According to Aakar Patel, chairman of Amnesty International India, the criminal justice system in modern nation states is designed to correct the imbalance between the state and the accused. Patel told Frontline: “All powers lie with the state, which controls the police and the prosecution and which makes and amends the laws. This imbalance is corrected through due process and an independent judiciary. What has happened in India is that over the years the state has lost interest in the actual prosecution and conviction, perhaps because this is difficult to achieve given the levels of competence in the system. Therefore, it has turned its attention to the denial of bail.”

Police constables release jail convicts/undertrial prisoners amid concerns over the spread of COVID-19 at Yerwada Jail, Pune, on March 27, 2020. The Supreme Court issued directives to lesson overcrowding in prisons to stem the spread of the pandemic. | Photo Credit: JIGNESH MISTRY

Patel pointed out that three-fourths of India’s prisoners are undertrial prisoners, with a vast majority from underprivileged communities. “The President’s comments should be understood in this light, and as a democratic state committed to upholding the rights of all, it is incumbent on the state to improve its record on this front.”

Prof. Vijay Raghavan from Centre for Criminology and Justice at Tata Institute of Social Sciences told Frontline: “Our data and our work actually prove what President Murmu has said. Not everybody requires imprisonment if they have effective legal aid and access to bail.” Quoting the Prison Statistics India report, Raghavan said: “Nearly 85 to 90 per cent of prisoners are SCs, STs, OBCs and Muslims. There is no data available on their socio-economic background, but our work with prison populations in Maharashtra shows that more than 60 per cent have a monthly family income less than Rs. 10,000. In all parameters of human development, they are from the most marginalised backgrounds. At least 30 to 40 per cent are not serious offenders.”

Systemic targets

Tribal groups form a large percentage of those who get customarily imprisoned. President Murmu particularly spoke about the plight of poor tribals in her home State, Odisha, and in Jharkhand. Human rights lawyer Sudha Bharadwaj told Frontline that forest laws have criminalised Adivasis since British times and continue to do so even after the Forest Rights Act, 2006, which was passed to correct historic injustices. “Community forest rights are still not easily enforced,” she said. “It is ordinary tribal people who are caught in the net of cordon-and-search operations and charged. They spend long years in prison before they are eventually acquitted for lack of evidence.”

Additionally, customary Adivasi practices are mechanically criminalised, leading to arrests rather than empathetic handling by the police and courts. For instance, youths from tribal communities in Tamil Nadu’s Nilgiris district are routinely arrested under the Protection of Children from Sexual Offences Act (POCSO) for consensually living with under-18 women of their tribe, a common practice among these communities. Members of denotified tribes such as the Pardhis are regularly picked up when any petty crime comes to light because of deep-seated prejudices and laws like the Habitual Offenders Act.

A combination of factors such as poverty and illiteracy, not understanding the language of the court, ignorance of the law, and ineffective or absent legal representation render the prisoners helpless.

According to Bharadwaj, what is sorely needed is court-appointed volunteers and social workers to represent Adivasi undertrials and help them understand and mediate court processes and ensure that they can communicate with their families. Raghavan too spoke of the need for social workers inside prisons to facilitate legal aid and rehabilitation. “Once a poor person, for example, an Adivasi, is arrested, the family cannot meet him. A jail visit means a day’s wages lost. When prisoners lose touch with their families, it becomes difficult for them to come out.”

The situation is worse for women prisoners. “Women once jailed are abandoned by their families. Our experience shows that their children are badly neglected, with nobody to look after them. They drop out of schools, their health deteriorates, sometimes they run away. We are creating a problem when it is solvable,” said Raghavan.

Bail vs jail

In April 2022, the Central government said it was working to amend the Code of Criminal Procedure, the Indian Penal Code, and the Indian Evidence Act to ensure affordable and speedy justice to all. The President’s remarks came close on the heels of CJI Chandrachud’s observation that higher courts were swamped with bail applications due to a “sense of fear” in the lower judiciary. On several occasions, the Supreme Court has expressed concern over the continued detention of accused persons even after being granted bail. In August 2022, while giving bail to a man accused of cheating and forgery, a bench of Supreme Court Justices Sanjay Kishan Kaul and M.M. Sundresh waived the cash security of Rs. 75 lakh. The accused had secured bail four years ago but remained in jail because he could not raise the amount.

After President Murmu’s speech, the top court on November 29 directed State jail authorities to submit details of prisoners who remain in jail despite securing bail. The details were to be forward to the National Legal Service Authority (NALSA) in 15 days. Earlier, on August 15, the Supreme Court had recommended remissions to coincide with the 75th year of Independence, following which the Home Ministry had issued guidelines to States to release certain categories of prisoners in three phases on August 15, 2022, January 26, 2023, and August 15, 2023.

In September, a bench of Supreme Court Justices Sanjay Kishan Kaul and Abhay S. Oka, while hearing a batch of petitions relating to life convicts, observed that convicts who have completed 10 years of imprisonment should be released on bail unless there are other compelling reasons. Significantly, the Supreme Court in Arnesh Kumar vs State of Bihar had stated that the police should ordinarily not arrest people if the offence they are charged with has a maximum sentence of less than or up to seven years. “In all such offences, police should ordinarily not arrest, they should send a notice and only if the person doesn’t cooperate with investigation, only then they can arrest if they want,” it said.

According to Prof. Raghavan: “Prisoners granted bail are definitely not dangerous. They are still inside as they cannot produce the bail bond or surety due to poverty. There are also those whose lawyers abandon them because they can no longer pay their fees. For those who don’t have lawyers at all, there is the state legal aid system and district legal services authority, but these lawyers are paid small honorariums and don’t take the work seriously.”

Inhuman conditions

Jai Parkash’s name was on the original list of undertrials granted remission on August 15 this year, but the police moved the trial court and restored the challan against him. It was only in September, when advocate Irfan Khan filed a petition seeking compensation of Rs.50 lakh for “illegal detention without justification” that the Jammu and Kashmir High Court took note. It observed that a 2001 city court order had noted that the accused was suffering from chronic mental illness. There was a report from the head of the Government Medical College and Hospital, Jammu. The court said: “The [case] file seems to have been consigned to records by the learned Magistrate without passing any further orders or holding any inquiry in the matter.”

According to Vikram Singh, a former Uttar Pradesh Director General of Police, a majority of prisoners are undertrials who have committed petty offences. This is followed by people who are old, destitute, infirm, mentally ill, and those who do not have the means for bail. “The prisons are hell on earth. There are four persons in spaces meant for one. The toilet facilities, the food, the vermin, the infections, the inhuman conditions are a human tragedy,” Singh told Frontline.

Jail reforms

Where does on begin to look for solutions? According to Singh, the main issue is the absence of long-term jail reform plans. “Everything works on an ad hoc system. And prison reforms are not top priority,” he noted.

Singh spoke of the need to strengthen Lok Adalats for minor offences such as traffic infringements, excise offences, shoplifting, and disorderly public conduct. “People who have no business to be in jail should be released. It is the best way forward for the jail administration and for society at large.”

For Prof. Raghavan, the dismal budget allocation for the criminal justice system is the problem. “The justice system is in a shambles. We need better trained police, more courts, more court halls, more court staff,” he said. He also invoked bail reforms. “There should be an alternative bail system. It should not be only financial,” he said, adding that for minor crimes, the accused could be asked to report at a court or police station at regular intervals or assigned social work.

To quote Justice Lokur: “The President said she was leaving much unsaid. It is for us to realise and do something about it.”

The crux

• On November 26, 2022, President Droupadi Murmu in her valedictory address at the Constitution Day celebrations held by the Supreme Court brought the spotlight back on overpopulated prisons.
• Experts believe the longstanding problem cannot be solved without police and jail reforms.
• After President Murmu’s speech, the top court on November 29 directed State jail authorities to submit details of prisoners who remain in jail despite securing bail.
• According to Vikram Singh, a former Uttar Pradesh Director General of Police, a majority of prisoners are undertrials who have committed petty offences.
• This is followed by people who are old, destitute, infirm, mentally ill, and those who do not have the means for bail.
• The main issue is the absence of long-term jail reform plans.