Justice for Undertrials and Reducing Pre-Trial Detention

Justice for Undertrials and Reducing Pre-Trial Detention

The Issue

India has one of the highest pre-trial detainee populations in the world. Nearly two-thirds of the country’s prisoners are ‘undertrials’. These include men and women presumed to be innocent in the eyes of the law but who are in jail for months and even years waiting for the law to take its course. Some have even been detained for periods longer than what a formal conviction would have brought.

In Dec’2013, there were around 4,11,992 prisoners in various jails in India, of which over 2,78,503 – more than 67.6% - were undertrials, according to the National Crime Records Bureau (NCRB). In 2012, Karnataka have 8940 prisoners – over 68% of the total prison population – were undertrials.

NCRB all India figures reveal that 50.1% of undertrials are between the age group of  30-50 years and 32.1% convicts were in the age of 18-30 Years. In 2012, Karnataka 53.85% of undertrials are between the age group of 18 to 30 years.

NCRB all India figures reveal that majority of convicts are either illiterate or educated class X.

As per NCRB statement, the number of trails increased by 9.3% in 2013 (2,78,503), over 2012 (2,54,857).

Consequences of excessive undertrial detention and aggravating factors

Excessive undertrial detention not only adversely affects the lives of prisoners and their families, but also leads to overcrowding in prisons, which puts undue pressure on the entire criminal justice system machinery.

Most undertrials have low levels of education and are therefore unlikely to be aware of their legal rights.

Undertrials are among the most vulnerable sections of the prison population – they are less able to contribute to the preparation of their defence than defendants who remain at liberty, and more likely to face torture and other ill-treatment. Their detention leads to loss of employment, which could cause further economic hardship to them and their families.

In addition excessive undertrial detention wastes public resources. An average of Rs. 60,000/- of Indian tax payers money is spent as annual expenditure on an inmate.

Karnataka State spends crores of tax money as annual expenditure on an inmate.

Another significant consequence of excessive undertrial population is overcrowding of prisons. Prisons in India have an average occupancy rate of 118.4%. Karnataka has, as in December 2012, an occupancy rate of 100.3%. Overcrowding worsens the conditions in jails, aggravating the lack of adequate sanitation, food and health care. In Karnataka, this has been found to result in undertrials contracting skin diseases, tuberculosis, malaria and other communicable diseases. Congested jails often tend to be chaotic and unsupervised, leaving inmates at a heightened risk of physical and psychological abuse and even torture.

All India Council of Human Rights, Liberties & Social Justice seek to work with Government of Karnataka and other states.

All India Council of Human Rights, Liberties & Social Justice India (AICHLS) seeks to work with the Government of Karnataka and other States also to reduce the number of undertrials, who are in detention in jails across the state. This will help decrease overcrowding, ensure that undertrials eligible to be released under law are not held in jail, and make Karnataka’s criminal justice system a role model for the rest of the country.

Towards this objective, immediate and effective implementation of Sec. 436A CrPC has been stressed by both the Central and State Government vide the:

a. Central Directive No. V-13013/70/2012-IS (VI), dated 17th January 2013 (enclosed A1), issued by Union Ministry of Home Affairs (CS Division) and

b. Government Order No HD 51 PRA 2012, dated 12th November 2013 (enclosed A2), issued by the Karnataka Home Department

We have been working on this issue since Jan’2012, and have met several people including the Central Minister, State Minister, former Supreme Court and High Court judges, members of the Legal Aid community, activists, lawyers, public prosecutors, and former and current police officials. The aim was to, firstly, understand the systemic factors and challenges that contribute to excessive and prolonged pretrial detention in Karnataka; and secondly to explore creative ways of reducing pretrial detention.

Some very important Suggestion need to be focused by All the Central and State Governments:

Effective monitoring mechanism for the implementation of the Circular issued by Ministry of Home Affairs to all States and Union Territories regarding the implementation of section 436A CrPC in January 2013.

In Karnataka - Effective monitoring mechanism for the implementation of Circular issued by the Prisons Department, in November 2013, to all districts stating that the Undertrial Review Committee[1] (UTRC) has been constituted.

In Karnataka –review the compensation scheme for Legal Aid lawyers in the state; and setting up monitoring mechanisms for implementation of the UTRC.

National & Karnataka– A proper draft or policy to determine eligibility under Sec. 436A CrPC , where AICHLS can play a vital role.

AICHLS can give a better representation in all the Council or Committee or Commission for better implementation of CrPC 436A.

AICHLS can engage with the Prison authorities to train the staff on accurate data management with regard to undertrial prisoners. Identified and analysed various systemic challenges for the lack of implementation of Sec.436A in prisons; helping authorities with resolving those issues.

AICHLS analyzed the recommendations suggested by Amnesty International, which may be very useful and effective.

During the course of our research, on the issue, in Karnataka so far we have identified four systematic issues that have contributed to the problem of excessive pre-trial detention in the state. The same with the along with some key recommendations are mentioned below.

A. Lack of Proper Prison Record Management

i. Transparency of information and effective monitoring will help facilitate the release of eligible undertrials and reduce overcrowding in jails. As a first step, a central computerized database and tracking system for prisoners in all jails across the state should be set up, with periodic training of prison officials in its use.

ii. The existing model of recording undertrial prisoner data should be reviewed and made conducive to the identify eligibility for release under Section 436A.

B. Delays in court productions due to lack of adequate police escorts and video-conferencing facilities

i. Urgent attention is required for creating a pool of independent escorts for prisoners for production in court.

ii. Further, judicial supervision of the undertrial population through regular jail visits of district magistrates as ex-officio visitors should be implemented.

C. Lack of Effective Legal Aid

i. There is an urgent need to strengthen legal aid services in the state, including by providing lawyers competitive salaries and incentivizing their work.

ii. The government must ensure that disciplinary complaints against legal aid lawyers are promptly investigated and adjudicated in accordance with professional codes of ethics.

D. Non-functional Undertrial Review Committees (UTRC)

i. The Karnataka government, having notified all districts about the constitution of the Undertrial Review Committee (UTRC) in November 2013, must now monitor and ensure its regular and effective implementation.

ii. The Karnataka Home Minister must direct the office of each Principal District and Sessions Judge to ensure that the minutes of every UTRC meeting, lists of undertrial prisoners presented, and action taken by the committee in every meeting are maintained and submitted to the Home Minister’s office, on or before the 1st of the month following the UTRC meeting. This will streamline record-keeping and ensure transparency and accountability.

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