In India the administration of prisons is governed by the Prison Act of 1894. The Act is old and many of its provisions are outdated. Section 27 of this Act provides that unconvicted prisoners are to be kept apart from the criminal prisoners. Many jail manuals also provide for strict segregation of undertrials from convicted prisoners. The Orissa jail manual, for example, even provides that undertrial prisoners with previous convictions should be kept apart from those undergoing trial for the first time, and juvenile undertrial prisoners should be separated from adult undertrial prisoners.
But these rules are more often breached. In most of the States or Union Territories, there are no separate buildings for keeping undertrial prisoners and so they are confined for long periods in the same prison building with the convicted prisoners. Segregation of the undertrial prisoners in separate wards of the same building is also far from being effected. In some prisons there are separate wards for undertrial prisoners, but essential facilities and services like kitchen and hospitals are common. It is thus difficult to maintain segregation between undertrial and convicted prisoners.
Lodging undertrial prisoners with the convicted ones leads to what is called "contamination of crime." Many inexperienced young men come into constant touch with hardened prisoners and become coarsened and spoiled. It is known that many of the gangsters recruit members of their criminal gangs from among these borderline, yet redeemable offenders.
In many jails in India undertrial prisoners are placed in charge of convict officers. Rule 441 of U.P. Prison Manual provides that convict officers shall be on duty in the undertrial wards. This rule not only militates against Section 27 of the Indian Prison Act of 1894, but is contrary to the basic principals of sound prison management. Constant movement of undertrial prisoners in and out of prisons creates problems. Narcotics and other contraband are sometimes smuggled into the prisons through them, and they are also carriers of contagious diseases.
The number of non-criminal and lunatic undertrial prisoners is astoundingly high in some of the jails. Other categories of unconvicted prisoners include remand prisoners who have not been served with charge-sheets to enable commencement of trial; persons under protective custody such as stray children and victims of rape; and persons confined under preventative sections of the Code of Criminal Procedure (CrPC Sections 107, 109 and 110). The Mulla Committee in its report observed that preventative sections of the CrPC should be reviewed and amended to restrict their use only in genuine cases, and the practice of using these sections to swell up police apprehension figures needs to be eliminated.
The National Human Rights Commission has received complaints from prisoners from many jails that they are not produced before the courts on the dates of their hearing because of non-availability of police escorts. The police authorities counter that since no staff have been sanctioned and specifically earmarked for prisoner escort duties, they find it difficult to spare police escorts. Provision of separate police staff for escorting prisoners to courts and hospitals needs to be undertaken.
A senior law-enforcement official, G.C. Singhvi, offered what for India is a bold suggestion: there should be a judicial lock-up in each place where a criminal court functions and all such judicial lock-ups should be placed under the administrative and operational control of the State High Courts. This innovative suggestion would enable the undertrials to avoid the stigma of being imprisoned with convicted prisoners, and deserves careful consideration.
Because of the overwhelming presence of large numbers of undertrial prisoners, most of the jails in India are crowded to suffocation. In Tihar the declared capacity is 2,487 prisoners, while the average daily jail population is over 8,000. During a surprise visit to Meerut jail, it was found that 3,000 prisoners were packed into a facility designed for 650 -- 80 percent of them were undertrials. The situation is much the same in other jails in India. The overcrowded prisons lack the space, facilities and resources to provide prisoners with normal work, training and educational opportunities.
The main reason for the astonishingly large number of undertrial prisoners languishing in Indian jails is an inordinate delay in trial and disposal of cases. In various jails there are a large number of undertrial prisoners rotting for more than five to six years because cases against them are dragging on interminably in law courts. Even many who have been granted bails by the courts are not released because they are too poor to arrange for sureties.
Recently in a writ petition (No. 559 of 1994 - R.D. Upadhaya v. State of Andhra Pradesh) the Supreme Court ordered speedy trial of cases of about 1,930 undertrial prisoners who had been in the Tihar jail for periods ranging from 3 years to 11 years. In respect to 880 murder cases, the Supreme Court ordered the Delhi High Court to designate ten additional District Judges to take up the trial of these cases. The Court ordered that in respect to cases regarding attempted murder which are pending for more than two years, the undertrials should be released on bail to the satisfaction of the courts. Bail should also be granted forthwith in respect to other cases like theft, cheating, counterfeiting, etc. If the undertrial prisoners are unable to provide sureties, the trial court may consider releasing them on bail by obtaining personal bonds. The Supreme Court also directed that it is not necessary for undertrial prisoners to move applications for bail. The lower courts, on the authority of the Supreme Court, may now grant them bails. This is a bold and innovative judgment.
In another far-reaching judgment, the Supreme Court has recently ordered the courts to release on bails all accused persons whose trials are pending for one year or more for offenses attracting imprisonment up to seven years and who have already spent 6 months to a year in jails. Cases which are pending for more than a year where legal punishment is below one year would be closed and the accused would be acquitted by a court order. The Court declared that it will not allow criminal prosecutions in India to operate as 'engines of oppression." This judgment, it is hoped, will usher in a new dawn for thousands of undertrial prisoners.
of Undertrial Prisoners
Recently the question of the voting rights of undertrial prisoners was raised and agitated in the courts. Section 62(5) of the Representation of People Act (RPA) of 1995 provides that 'no person shall vote in any election if he is confined in any prison, whether under a sentence of imprisonment, transportation or otherwise." A writ petition was filed against this provision, which the Supreme Court dismissed. The Court ruled that that Section 62(5) of the RPA was "reasonable, and in public interest, and not arbitrary."
The law thus bars all undertrial prisoners who cannot arrange bail, including those charged with minor offenses, from the right to exercise their franchise. This provision of the RPA is discriminatory and denies the constitutional rights, nay human rights, of a large number of undertrial prisoners. It is absolutely necessary for the Supreme Court to review its decision in this regard.
[Sankar Sen is a member of the Indian National Human Rights Commission and a PLN subscriber.]
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