Undertrial Prisoners: unrepresented and underprivileged

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Approximately 76 percent of prison inmates in India are undertrial prisoners.

It’s a vicious circle. Once you get in it, you can’t leave.

It takes a toll on your mind, strains your finances, and your life hangs in the balance. Just like the one being held by Lady Justice we see in the courtrooms. 

Just one signature on a document and you have entered the circle which will probably end with another document that is, a judgement by the court. 

Undertrial prisoners enter the vicious circle as soon as they sign the Vakalatnama, appointing a private advocate to represent them. “A lot of undertrial prisoners don’t know about free legal services,” said H. Shashidhara Shetty, member secretary, Karnataka State Legal Service Authority (KSLSA).

“Whenever a person is arrested by police, they get them in contact with an advocate, who makes them sign a Vakalatnama. By the time the inmate is presented in front of the magistrate, they can’t seek help from legal service authorities,” he said. They are a part of this “vicious circle” before they come to know about free legal services, which are available to them, he added.

A gradual increase in the number of undertrial prisoners in India from 2015 to 2020
*Data from Prison Statistics of India 2020

According to Prison Statistics of India (PSI) 2020, the number of undertrial inmates and detenues is 3,71,848 by the end of December 31, 2020. The number of undertrial prisoners has been increasing continuously since 2015, seeing an increase of 31.8 percent. 

Among the 3,71,848 undertrial prisoners, the highest number of undertrial prisoners are present in District jail (approximately 50 percent of the undertrial prisoners) followed by Central jails (36.1 percent) and Sub jails (11.9 percent).  

Approximately 2.83 lakh of undertrial prisoners have been charged under Indian Penal Code (IPC) cases lodged in various parts of the country. Around 65.6 percent of undertrial prisoners have committed offences affecting the human body, followed by prisoners of offences against property, which is approximately 27.3 percent. 

“A prisoner is a human being as well as a natural person or a legal person,” said Anagha Kulkarni, an advocate. Even after a person gets convicted for a crime, it does not reduce their status to a non-person whose rights can be snatched away by the prison administration, she said. 

Prisoners have a right to speedy trial, free legal aid services, right against torture, and right against inhuman and humiliating treatment, which they might be subjected to in the prison, she added. Article 19 (1) of the Indian constitution provides 6 freedoms to the citizens of the country, such as right to freedom of speech and expression, to assemble peacefully without any arms, among others.

Legal Aid for undertrial prisoners:

The Constitution of India has provisions to ensure legal representation and legal aid to the citizens of India. Articles 21, 22, and 39-A of the constitution make legal aid a constitutional right available to the people. 

report submitted by the Legal Aid Committee appointed by the Gujarat government in 1971 (headed by Justice P.N. Bhagwati), pointed out that most of the accused don’t have a great financial backing, which was a major reason for them being unable to avail lawyers or even pay the bail amount, no matter how small it might be.

It stated that “legal aid has to be spread wider and legal service programme has to be geared to socio-economic goals.” The report suggested the formation of Legal service clinics at the district, taluk, and state levels to ensure that legal aid is being provided to the ones who need it.

NALSA, State legal service authority (SLSA), and District legal service authority (DLSA) were established under the Legal services authority act, 1987. These authorities have been set up to provide free and competent legal services to people belonging to the weaker sections of society. 

The DLSA appoints an advocate for the undertrial prisoner or underprivileged people after scrutiny, provided they have filed an application seeking legal representation.

The Karnataka State Legal Service Authority (KSLSA) has 62 panel advocates for providing free legal services. M. Purushothama, the member secretary of DLSA, Bengaluru urban, said DLSA has a panel of 150 advocates who take up pro bono cases or free legal services. 

Alongside panel advocates, KSLSA appoints remand advocates in every court. “If anyone comes to us for legal representation, the remand advocate present in the court help with that,” said Shetty. 

Gurfateh Singh Khosa, student convenor of National Law School Legal Service Clinic (NLS LSC), Bengaluru, said a lot of prisoners have not met the panel advocate appointed by the DLSA or State legal service authorities (SLSA). Most of the panel advocates don’t visit prisons often to meet the clients, this hinder the legal right of prisoners to be represented, he added. 

Similar observation was made by Swati Mehta, associated with Tata Institute of Social Sciences, during the third national consultation. She said, even though most of the undertrial prisoners have a lawyer, they do not know them well or enough as lawyers do not visit prisons. She highlighted the fact that there is an undeniable link between poverty and a denial of liberty, irrespective of a legal aid or a private lawyer. 

“There are instances where a lawyer appointed by the SLSA or DLSA have charged fees from the prisoners,” said Debditya Saha, senior co-opt at NLS LSC. The prisoners who want to avail legal services are unable to do so, due to lack of legal service clinics or difficulty in accessing them, he added. Legal service clinics in prisons also have a little manpower.

Shetty said KSLSA has asked to set up legal service clinics in the police station, to ensure that prisoners know about their legal rights, but police has paid no attention to it. Some legal service clinics are outside the premises of prison, which makes it difficult for prisoners to access them unless they are being assisted by someone from the legal service clinic, said Saha.

Remand advocates also get around eight to nine cases per month and are paid Rs. 1.70 lakhs per month, which is a lot considering the number of cases handled by them, said Shetty.  Approximately three or four panel advocates are appointed as a remand advocate on a rotation basis, he added. 

Justice B.S. Patil, Upalokayukta of Karnataka, said people don’t really trust the government appointed lawyers, thinking they won’t be able to help their cause. “They are afraid of the process as the case goes on for very long.” 

According to the data from National Judicial grid, there are more than 3 crore cases pending around the country. 

Background:

The 78th Law Commission Report defined “undertrial prisoners” in a wider sense, it includes people in judicial custody on remand. The report further moves on to describe three types of undertrial prisoners, who are inmates of jail:

  1. Person being tried for non-bailable offences, and the court has declined to pass an order for their release on bail;
  2. Person being tried for non-bailable offences where the court has passed an order for bail, but due to some reason they are unable to furnish bail bond; and
  3. Person being tried for bailable offence, but due to difficulty of finding a surety or some other reason they are unable to furnish bail bond. 

“If the right of bail is denied to the accused, it would mean that though he is presumed to be innocent till guilty is proved beyond reasonable doubt, yet he would be subjected to the psychological and physical deprivation in jail,” said Advocate Kulkarni.

The population of undertrial prisoners across the country with Ladakh having just 21, the lowest number, and Uttar Pradesh with 80,577, the highest number of undertrial Prisoners.
*Data from Prison Statistics of India 2020

Justice R.K. Goel, director of National Legal Service Authority (NALSA), during the Third National Consultation on Prisoners’ rights, legal aid, and Prison reform, gave a meaning for prisoners. He said, a prisoner is a person “whose legal liberty has been denied, and who has been confined to a particular place against his will.” A prisoner is someone who is either in police or judicial custody, facing a trial or has already been convicted.  

The undertrial prisoners are considered “innocent” in the eyes of law, based on the principle of natural justice. The Supreme Court in Moti Ram versus State of Madhya Pradesh case observed that “Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.” 

According to a study, the majority of the undertrials have spent more time in jail than the actual sentence that would have been given by the judgement. Around 71.2 percent of the undertrial prisoners were confined upto one year, according to the 2020 PSI report. Out of this, approximately 49.3 percent of undertrials were confined for up to 3 months. Approximately 14.6 percent of undertrial prisoners were confined for one to two years, followed by 7.9 percent being confined for two to three years, and 4.5 percent confined for three to five years. Approximately 1.9 percent of the undertrials have been confined for more than five years. 

The study also draws correlation between the educational background and the population of undertrial prisoners. Approximately 27 percent of the undertrial prisoners are illiterate and 40.7 percent are educated below class 10th standard. They constitute 67.7 percent of the total population of undertrial prisoners across India. 

Solutions:

The increasing number of undertrial prisoners are shocking but the legal system is a major reason behind it. Despite conducting legal literacy programs in the remotest areas, the people do not come forward seeking help from KSLSA, said Shetty. 

NLS LSC is starting a project for Undertrial prisoners to ensure that they are aware of their case status, said Saha. The program will be directed only toward the undertrial prisoners who have sought free legal services from SLSA. NLS LSA looks to change the constant instances of lawyers not speaking to or visiting the prisoner, they are being appointed. 

Chandeshwar Prasad, a retired Deputy Superintendent of Police (DSP) of Jharkhand Police, said the police has limited powers in matters of custody as once the prisoner is produced in front of the magistrate, he is no longer under the police custody. “The prisoner goes under the judicial custody and the police has no role in it.” 

He said if the prisoner asks for legal services from the police, then they get them in contact with the public prosecutor, but there is no legal service clinic in the police station. 

Swati Mehta, in the conference, addressed the need of setting up an undertrial review committee as mentioned in the Bhim Singh case. 

During the Rajya Sabha Question hour on February 2, 2022, the Ministry of Home Affairs was questioned about the working of undertrial prisoners and the aid for them by the government. Ajay Kumar Mishra, Minister of State in the Ministry of Home Affairs, said there are approximately 1091 legal service clinics in jails across the country, with para-legal volunteers and panel advocates. “Such clinics have been opened in jails to ensure that no prisoner remains unrepresented and legal aid and advice is provided to the prisoners,” he added. 

Apart from the legal service clinics and undertrial review committee, the law also provides protection to the undertrial prisoners under section 436A of the Criminal Procedure Code. It provides for the maximum period for which an undertrial prisoner can be detained in the custody. If an undertrial prisoner has already been detained for more than one-half of the maximum period of imprisonment for the crime (as prescribed under law), then they can be released under bail by the court with or without sureties. 

Bail is one of the rights provided to any prisoner but there is a reluctance from the courts in granting bail, the Commonwealth Human Rights Initiative (CHRI) report mentioned. Bail can only be denied if the court has a reason to believe that accused can temper with the evidence, influence witnesses, or commit more crimes while out of jail, said Advocate Kulkarni. While most of the undertrial prisoners are uneducated and belong to the low-income group, the possibility of them tampering with evidence or influencing witnesses is low. 

“The accused not being able to produce sureties as well as lack of awareness among the underprivileged and marginalized sections of the society,” she added. 

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