Written by Garima Tiwari

“The laxity with which we throw citizens into prison reflects our lack of appreciation for the tribulation of incarceration; the callousness with which we leave them there reflects our lack of deference for humanity.”[i]    -Supreme Court of India (2013)

The Supreme Court in the above case granted bail to Thana Singh who had been languishing in an Indian prison for more than 12 years, awaiting the commencement of his trial for an offence under the narcotics law.

An undertrial, or a pre-trial detainee denotes an un-convicted prisoner i.e. one who has been detained in prison during the period of investigation, inquiry or trial for the offence she/he is accused to have committed. He is an accused who is assumed to be innocent till proven guilty. He is in custody only to ensure that he appears at court as required or is available to answer questions during investigations. There is no other reason for him to be in prison Undertrials constitute 64.7% of the total prison population in India. There are over 2.41 lakh undertrial prisoners in India.[ii] An extensive investigation across the country has exposed a dark sub-culture thriving in jails across the country, not very different from the murky underworld of organised gangs and criminals. In the absence of proper legal aid, the poor and the vulnerable, especially women and youngsters, unwittingly become part of the sordid system.[iii]

Many prisoners are constrained to languish in prisons because the police do not finish investigation and file the charge-sheet in time. This is a very serious matter because such people remain in prisons without any inkling of a police case against them. Many prisoners remain in prisons for long period because of the delay in trial.

              The grant of bail[iv] is one important remedy available to reduce pre-trial detention. [v] Indian courts have reiterated that the grant of bail should be the rule rather than the exception. Because they are considered to be less likely to abscond or interfere with the investigation, bail provisions in non-bailable offences are more liberal if the accused is under sixteen, a woman, sick or infirm.[vi] Despite sounding fair, the bail provisions and their implementation are highly discriminatory. But the prisoners are unable to serve surety and as has been mentioned in the Legal Aid Committee appointed by the Government of Gujarat noted[vii]:

The bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situated would be able to secure their freedom because they can afford to furnish bail.

As the UN Human Rights Committee (UNHRC) noted, pretrial detention can therefore negatively impact the presumption of innocence,[viii] and should be used only as a “last resort.”[ix] States should only detain individuals pending trial where it is absolutely necessary. International and regional human rights instruments are explicit as to the limited circumstances under which pretrial detention is permissible. The UNHRC has stated that,

“bail should be granted, except in situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee from the jurisdiction of the state party.”[x]

In criminal proceedings, following the first appearance before a judicial officer, European Court of Human Rights Article 5(1) only permits detention when it is reasonably necessary to prevent further offenses or flight.[xi] Thus, international standards strongly encourage the imposition of noncustodial measures during investigation and trial and at sentencing, and hold that deprivation of liberty should be imposed only when non-custodial measures would not suffice.

Most of those in the Indian prisons are poor, indigent, illiterate or semi-literate. They do not know that they are entitled to free legal aid or that they can be released on personal bond. They therefore, continue to be in jail for long periods. Lack of adequate legal aid and a general lack of awareness about rights of arrestees are principal reasons for the continued detention of individuals accused of bailable offences, where bail is a matter of right and where an order of detention is supposed to be an aberration. [xii]

The overuse of detention is often a symptom of a dysfunctional criminal justice system that may lack protection for the rights of criminal defendants and the institutional capacity to impose, implement, and monitor non-custodial measures and sanctions. It is also often a cause of human rights violations and societal problems associated with an overtaxed detention system. One of the fundamental elements of human rights law which importance grew over time is the concept of “Fair Trial”. Taking this into account, the question rises how far the application of the fair trial rights stretches into the pre trial stage of investigation. Answering this question is far from easy and as Safferling points out correctly, it is by no means obvious what the fair trial concept really encompasses and what the singular rights within this concept really stand for.[xiii]

In India, apart from the Prisoners Act, 1984, there is a Model Prison Manual in place and the various judicial pronouncements have made it clear that prisoners are entitled to human rights, the most important of which is presumption of innocence till proven guilty.

In 1982-83, the All India Jail Reforms Committee under Justice A.N. Mulla came out with suggestions for prison reform. Yet to be implemented, the committee had recommended that undertrial prisoners should be lodged in separate facilities, away from convicted prisoners. It had also called for quick trials, simplification of bail procedures and suggested that bail should be granted to the accused as a matter of right unless the prosecution could prove that releasing the accused on bail endangered the security of society.[xiv]  Another suggestions is that it should be made mandatory for the jail authorities to educate them about their rights and provide them legal aid. The plight of the wrongfully confined prisoners is compounded when jail authorities refuse to release information about them in public domain. One very relevant solution is Section 436A of the Indian Criminal Procedure Code states that the maximum period for which an undertrial prisoner can be detained without being released is not more than 50% of the maximum imprisonment specified for the charge he/she is booked for, except if the offence attracts death as the maximum punishment. According to the law, such prisoners can be released on personal bond if they cannot furnish bail. This provision is hardly used by authorities. Public-spirited citizens and lawyers could also take up these matters. The prison authorities should display the updated information every month on their website and also display hard copies of the information in every prison in a place where prisoners have access.

As Justice P.N Bhagwati, “It is high time that the public conscience is awakened and the government as well as the judiciary begins to realise that in the dark cells of our prisons there are a large number of men and women who are waiting patiently, impatiently perhaps, but in vain, for justice – a commodity which is tragically beyond their reach and grasp.”[xv]