System failure

Inadequate judicial infrastructure and implicit support to illegal detention are among the reasons for the large number of undertrial prisoners in India.

Prisoners, including undertrials, writing the Secondary examination at the Berhampur Circle Jail in March 2008.

AS India entered its 68th year as an independent nation, Chief Justice of India R.M. Lodha lamented the long delays in the criminal justice delivery system. He admitted that the process of delivery of justice had become a punishment in itself and referred to the disproportionately large number of undertrials lodged in prisons. Subsequently, on September 8, Supreme Court judge Justice J. Chelameswar, speaking at the H.R. Khanna Memorial Lecture in Delhi, highlighted the steadily increasing volume of pending cases and the inability of the court to dispense justice quickly.

A report of the National Crime Records Bureau (NCRB), titled “Prison Statistics India 2012” and released in September 2013, gives the latest figures of undertrials in Indian jails. They number 2,54,857, that is, 66.2 per cent of the total number of inmates. Also, 344 women convicts with their 382 children and 1,226 women undertrials with their 1,397 children were lodged in various prisons in the country. The report further notes that 4,470 inmates, or 1.2 per cent, have mental illnesses.

The figures of the period of detention of undertrials are startling and indicate the slow pace of the justice delivery system. At the end of 2012, a total of 2,028 undertrials had been detained in jails for more than five years. Uttar Pradesh had the largest number, followed by Punjab.

According to information available with the Supreme Court, as on July 31, 2014, there were 35,244 matters pending at the stage of admission and 30,518 matters pending at the stage of hearing. Of these, more than 46,000 matters had been pending for a period exceeding a year. Ten criminal appeals filed between 1991 and 1999 and 10 criminal writ petitions filed between 2002 and 2006 were still pending.

The 245th report of the Law Commission of India, titled “Arrears and Backlogs: Creating additional Judicial (Wo)manpower” and released in July 2014, states that the judicial system is unable to deliver timely justice because of the huge backlog of cases, which the current judge strength is inadequate to dispose of. Recommending that judges should be recruited on a priority basis, it stresses on better infrastructure, more support staff, and the reduction of judicial delay. It talks about the need for timely filling of vacancies and an increase in the age of retirement in the subordinate judiciary. Though the report cites the lack of infrastructure and judges as a reason for delays in the delivery of justice, it fails to mention several others. Lack of proper evidence produced by the investigating agencies, socio-economic profiles of the accused who cannot afford access to legal help, and the insensitivity of both the government and the law-enforcing agencies in treating prisoners are some of these factors.

Reasons for delay

Justice Chelameswar said that the disproportionately small number of courts in a country with a large population, the perennially increasing rights and obligations created by ever increasing pieces of legislation, the low level of efficiency of the judicial system and the multi-tier appellate system primarily caused the huge backlog in the justice delivery system.

A renowned legal researcher, who did not wish to be named, emphasised that the pendency of the large number of criminal trials is caused not just by inadequate infrastructure. He said, “One of the major flaws in the criminal justice delivery system is the stamp of approval given by judges to law enforcement agencies such as the police to bypass procedural safeguards. The system condones illegal detention. Convictions rely largely on custodial violence as a method of investigation and obtaining evidence. No court has held to this day that there is a right to legal aid in the police station itself where the maximum number of violations occur. The issue of how you get the police to present better evidence without resorting to custodial violence is removed from discussions on the pendency of cases.”

Another major reason for the large volume of pending cases is the inability of undertrials to furnish a bail bond. The researcher pointed out, “The collapse of the bail system is one of the reasons for the large number of undertrials. This calls for a relook at the way in which bail is given and the socio-economic profile of prisoners. There is prejudice against the poor. They also do not have access to good lawyers.”

Pakistani prisoners

A number of Pakistani prisoners have served more than a decade as undertrials in Indian prisons. A senior advocate at the Supreme Court, Bhim Singh, who has been fighting for the release of these prisoners for several years, said: “In some instances, the prisoners have served longer in prison as undertrials than they would have if they were convicted of the offences which they were accused of.” A petition asking for the release of these prisoners is at present being heard in the Supreme Court. According to the latest affidavit filed by the Ministry of Home Affairs, there were 125 Pakistani undertrial prisoners in jails across India as in January 2013. Most of the undertrials were arrested under the Official Secrets Act for collecting “secret information”. Zahid Ali was arrested under the Official Secrets Act in 2005 and is still lodged as an undertrial in Jaipur Central Jail. Dilwar Sain was arrested in 1998 in Kupwara and has spent 15 years in Jodhpur Central Jail as an undertrial. Shahnawaz Malik has spent 15 years in Jaipur Central Jail. Murtaza Aquib has also spent more than a decade in Jodhpur Central Jail as an undertrial. He was arrested in 2002 in Anantnag.

According to an affidavit filed by the Ministry of Home Affairs in the Supreme Court in February 2013, there are 53 instances of Pakistani nationals who have completed their sentences and are still languishing in detention centres as their nationality has not been confirmed yet by the Pakistan High Commission. Among those held at the detention centre in Amritsar are five deaf and dumb persons, arrested between 2007 and 2009 from Chabal, Gurdaspur and Ferozepur districts for various offences under the Indian Penal Code In an appalling lack of sensitivity, they have been referred to as “goonga” (meaning dumb in Hindi) in a table charting the names of Pakistani nationals in Indian jails.

Tajimudeen was arrested under the Narcotic Drugs and Psychotropic Substances (NDPS) Act in March 2009 and he completed his sentence the same year. However, the affidavit says he is still held at the detention centre in Amritsar. He was initially “considered” to be a Pakistani national. Subsequently, in 2011, the Pakistan High Commission said he was a Bangladeshi national. However, in 2012, the Bangladesh High Commission said that he was a Pakistani national and did not want him to go to Bangladesh. The matter was then taken up with the Pakistan High Commission through the Ministry of External Affairs. Abdul Sharif was arrested in 1997 for passport fraud. He had allegedly crossed over from Pakistan. He, too, is still detained in Amritsar though he has completed his sentence.