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Criminal Justice System & Poor

At his best, man is the noblest of all animals; separated

from the law and justice he is the worst.- Aristotle
Greek Philosopher and Scientist

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The Criminal Justice System

The criminal justice system descends from the British model.1 The judiciary and the bar are
independent although efforts have been made by some politicians to undermine the
autonomy of the judiciary. From about the time of Indira Gandhi's tenure as prime minister,
the executive has treated judicial authorities in an arbitrary fashion. Judges who handed
down decisions that challenged the regime in office have on occasion been passed over for
promotion, for example. Furthermore, unpopular judges have been given less-than-desirable
assignments. Because the pay and perquisites of the judiciary have not kept up with salaries
and benefits in the private sector, fewer able members of the legal profession have entered
the ranks of the senior judiciary.
Despite the decline in the calibre and probity of the judiciary, established procedures for the
protection of defendants, except in the case of strife-torn areas, are routinely observed. The
penal philosophy embraces the ideals of preventing crime and rehabilitating criminals.
The criminal justice system largely victimises the poor and vulnerable sections of society
and there is an urgent need for reform on multiple fronts, Chief Justice of India HL Dattu
said today as he called for the scrapping of laws which criminalise begging and sex work.2
In India, laws criminalising beggary, sex work and certain occupations of the tribal
community are often largely seen by the scholars and human rights activists as widening the
net of criminality by punishing destitution. A former Chief Justice of India warned about a
decade ago that the Criminal Justice System in India was about to collapse. It is common
knowledge that the two major problems besieging the Criminal Justice System are huge
pendency of criminal cases and the inordinate delay in disposal of criminal cases on the one
hand and the very low rate of conviction in cases involving serious crimes on the other. This
has encouraged crime.
Violent and organised crimes have become the order of the day. As chances of convictions
are remote, crime has become a profitable business. Life has become unsafe emphatically
for poor those who cannot afford to fight criminal cases and people live in constant fear.
Law and order situation has deteriorated and the citizens have lost confidence in the
Criminal Justice System.
The ultimate aim of criminal law is protection of right to personal liberty against invasion by
others protection of the weak against the strong law abiding against lawless, peaceful
1 http://www.country-data.com/cgi-bin/query/r-6165.html
2 http://zeenews.india.com/news/india/criminal-justice-system-victimises-poor-and-vulnerablecji_1505377.html
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against the violent. To protect the rights of the citizens, the State prescribes the rules of
conduct, sanctions for their violation, machinery to enforce sanctions and procedure to
protect that machinery. It is utter selfishness, greed and intolerance that lead to deprivation
of life, liberty and property of other citizens requiring the State to step in for protection of
the citizens rights. James Madison writes in his book The Federalist that if men were
angels no government would be necessary. It is the primary function of the government to
protect the basic rights to life and property of poor people because they are the most prone
creatures in a society. The State has to give protection to persons against lawlessness,
disorderly behaviour, violent acts and fraudulent deeds of others. Liberty cannot exist
without protection of the basic rights of the citizens by the Government.3
Two central philosophies anchor the commonly accepted notion of criminal justice. The first
is a zealous requirement for increased conviction rates. The second is the perception that
those people in prison deserve punishment rather than rehabilitation. Both of these
philosophies have especially grave consequences for the poor and marginalized. In this
context, the Criminal Justice Initiative provides pro bono and low cost legal aid service to
under trials and convicted prisoners who are unable to pay for their legal representation. Our
work is to defend civil liberties and to create a more humane criminal justice system. The
emphasis is on greater access to justice for the poor, workers, disabled, aged, sick, tribal,
women, juveniles and other minorities.
One of our main focus areas is work inside the prison, as we believe in corrections via jails
and prisons, which can only be understood by reviewing prison conditions and capital
punishment laws. We work with progressive prison administrators and police personnel to set
up legal aid clinics in prisons with the objective of representing indigent undertrials. Since
2002, we have been instrumental in setting up a legal aid mechanism for prisoners in Delhi.
Though the Indian judiciary makes the use of Capital punishment which is often times a
biased decision for the poor and vulnerable population, most of the countries and jurists
strongly believes in the abolition of death penalty.
We have certainly represented the poor and marginalized and have highlighted that a large
number of prisoners are kept in prisons without being produced in the courts on the dates
fixed for their trial or in connection with remand. (See: Rajendra Bidkar and Ors Vs. The
State of Maharashtra)4.These Writ Petitions were filed by the petitioners for challenging their
individual grievances. The Court enlarged the scope of these Writ Petitions as it came to its
notice that a large number of prisoners were being kept in prisons without being produced in
Courts on the dates fixed for their trial or in connection with remand.
In regard to its reform work in prisons, playing a pivotal role in implementation of the Mulla
3 Committee on Reforms of Criminal Justice System Government of India, Ministry of Home Affairs
CHAIRMAN Dr. Justice V.S. Malimath National Human Rights Commission Bangalore, (2003)

4 High Court of Judicature at Bombay, 2008

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Committee recommendations and the DK

Basu guidelines layed down by the

Supreme Court. Strongly condemning custodial torture and violence.
Subsequently, the court asked for magisterial enquiry report.
Another landmark case decided in the Bombay High Court resulted in the

release of
hundreds of under-trial prisoners, who had languished in prisons for far
beyond the maximum term of their punishment, due to slow court
procedures. (See: Shabnam Miniwaalla Vs. State of Maharashtra).5
However, statistics still demonstrate that 70% of Indias prison inmates are undertrials and
much remains to be done to improve the criminal justice system of the country. This is a
landmark case won by India Center for Human Rights and Law. It dealt with the

plight of under trials in Maharashtra state prison where hundered of them were
illegally detained. They were denied bail and kept past the period of maximum possible
incarceration. The Bombay High Court after hearing the case and going through relevant
records, directed that all persons charge-sheeted with bailable offences be released on bail
without security, sureties, or payment and merely on a personal recognizance bonds. The
case was important in that it saw the High Court enforcing a legal aid system of duty
counsels available to the accused from the point of arrest. The High Court also directed the
release of all persons who were in jail past the period of maximum possible incarceration.
Since the state government failed to comply with all the directives of the court order, the
petitioner filed a contempt petition.

>Need for reforms in Criminal Justice System:

Criminal justice is a governmental system of institutional practices aimed at regulating
society, diminishing crime, and penalizing those who violate laws with criminal sentencing.
The goal behind legal enforcement is to protect individuals and communities as a whole.
Although the poor have higher rates of person and property crimes, crimes committed
amongst the middle and high-class society are significantly more widespread and pose
greater economic detriment. The main difference is that crimes committed by members of
higher society are not as actively pursued as the crimes typically committed by the poor,
Police treatment of poor people differs greatly from the treatment given to people with a
higher socio economic status.
To be able to deliver appropriate legal services to the rural and tribal communities, we need
an alternative delivery system with a different model of legal service providers.6
5 Seeking the release of under trials languishing in Maharashtra state prisons.
6 http://www.thehindu.com/opinion/lead/serving-the-justice-needs-of-thepoor/article5415018.ece
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Delivery of legal services to the rich and the corporate class is organised not through
individual lawyers but through a series of networked law firms. These firms employ
hundreds of lawyers and domain experts all over the country to provide highly specialised
single-window services to their clients, of course at prices determined by the market. The
middle class, which cannot afford their services, go to individual lawyers or publicly-funded
legal aid services organised under the Legal Services Authorities Act. In this scheme of
things, it is the poor and marginalised rural and tribal communities who are left out. They
suffer injustice or seek justice through informal systems, including the so-called khap
panchayats. It is this sort of situation prevailing in the countryside that provides a fertile
ground for the exploitation of the poor and for the growth of extremist forces, undermining
the rule of law and constitutional governance.

Myth of legal aid

The 1973 Expert Committee on Legal Aid, titled Processual Justice to the People, which
eventually led to the enactment of the Legal Services Authorities Act, discussed the futility
of the court-centric litigative aid to the poor and marginalised sections, and recommended a
series of alternative strategies. Obviously, the emphasis was on legal empowerment and
mobilisation, preventive and strategic legal services intended to avoid victimisation, and the
development of a public sector in the legal profession capable of responding to the problems
of the rural and tribal communities. Unfortunately, when the legal aid law was enacted, the
focus again was on assigning a lawyer to the needy client who took the task in a traditional
style of protracted litigation with its attendant costs, uncertainty and delay much to the
dismay of the poor. Moreover, the system was premised on three assumptions which were
contrary to ground realities that the victim was aware of her rights and knew how to
approach courts; that legal aid offices were available in far-flung villages and tribal
settlements; and that the lawyer assigned had the right values, attitudes and competence to do
a professional job appropriate to the justice needs of the rural/tribal population. These
assumptions did not hold well in a majority of villages and, as such, conventional legal aid
became irrelevant to the rural population. Language and communication compounded the
situation, alienating the marginalised from a court-centric justice system. One alternative the
Legal Services Authorities Act provided was the Lok Adalat, which lawyers disliked. The
judges, honourable exceptions apart, turned it into an exercise to reduce arrears in courts
through what some people call forced settlements or hurried justice.

Nonetheless, the Lok Adalat did serve the cause of justice for those who could reach the
court despite all the odds. For others, legal aid had very little to offer. The Supreme Court did
help them in a big way in the 1980s and the 1990s through the instrument of public interest
litigation (PIL), which later lost its importance because of wide abuse by the urban elite and
vested interests. Although it is difficult to generalise the legal needs of the rural poor because
of the diversity of population, the need for food, shelter, education, health and work are
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admittedly the priority. The Constitution has left it to the legislature and the executive to
progressively realise these needs through laws, schemes and special measures.

At the same time, the Constitution promises to all its citizens equality of status and
opportunity, as well as equal protection of the law. Finding that large sections of the poor are
unable to fulfil their basic needs even after decades of democratic governance, the Supreme
Court sought to interpret socio-economic rights (Directive Principles) as civil and political
rights (Fundamental Rights), compelling the state to come forward with laws empowering
the poor with rights enforceable under the law. The Right to Education Act, the Food
Security Act, and the Employment Guarantee Act were promising initiatives in this direction.
However, the poor continue to be at the receiving end of an indifferent administration
because of the difficulties in accessing justice through conventional legal aid.

Need for an Alternative

We, therefore, need an alternative delivery system with a different model of legal service
providers in rural and tribal areas. How can one fix the land rights of the poor when they
have neither pattas nor other valid documents? How do water rights and forest rights get
protected from exploitation? What happens to government-sponsored schemes for food,
sanitation, health and employment, aimed at alleviating the misery of the poorest of the
poor? How to ensure that children are in school and are not abused and exploited? People
and children are exploited into forced labour as well. How can we resist these situation
through laws as According to Sociological School What ought to be law as we all know
life is dynamic not static government should make appropriate laws to curb the exploitation
of poor and destitute into forced labour and provide legal aid to the accused those who
couldnt afford legal fees and its also an obligation of the state towards a citizen.
When these questions were raised in a professional development workshop recently at
Bilaspur in Chhattisgarh, the consensus was that we need an alternative model of legal
service delivery to rural and tribal communities, for which a new pattern of legal education
needs to be developed. The mainstream law schools are not clear in their mission. Legal
educators blindly follow the Bar Council-prescribed court-centric curriculum, producing law
graduates unfit to serve the justice needs of the tribal and rural communities. With such
advocates, even a well-intentioned legal aid scheme cannot deliver justice to the
marginalised sections.
The Bilaspur Workshop evolved a framework of an alternative LLB curriculum for the
education and training of legal service providers, appropriate to rural and tribal needs. While
the mandatory part of the BCI curriculum is accommodated, the alternative model identified
over 40 subjects relevant to rural needs to be included in the optional component of the
curriculum. However, the workshop felt that the new type of legal service providers
proposed under the alternative model is not distinguished on the basis of knowledge of law
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only, but in terms of a different set of skills, attitudes and values relevant to the rural/tribal
communities. It was proposed that the final year of the five-year LLB programme be devoted
to experiential learning through social justice and legal aid activities in rural areas under the
supervision of NGOs, self-government authorities, collectorates, and legal aid committees
besides law school professors. The experiential learning is through clinical courses
developed by law schools for appropriate credits.
This is the right time for a serious discussion on how the law and lawyers can enable the
poor to help themselves throughout the world. Since 2008, highly regulated banks in the
developed world notably many of them are from the US are having trouble pricing and
trading complex mortgage-backed securities. At the same time, however, trust-based
microfinance banks like Bangladeshs Grameen Bank continue to do well, unaffected by the
financial uncertainty in the rest of the world.7

Indian System of Bail - Anti Poor

The concept of bail, which is an integral part of the criminal jurisprudence, also suffers from
the above stated drawbacks. Bail is broadly used to refer to the release of a person charged
with an offence, on his providing a security that will ensure his presence before the court or
any other authority whenever required. Bail, in law, means procurement of release from
prison of a person awaiting trial or an appeal, by the deposit of security to ensure his
submission at the required time to legal authority. The monetary value of the security, known
also as the bail, or, more accurately, the bail bond, is set by the court having jurisdiction over
the prisoner.
The concept of bail can traced back to 399 BC, when Plato tried to create a bond for the
release of Socrates. The modern bail system evolved from a series of laws originating in the
middle ages in England.
An overview of the following cases highlight the adverse condition of the poor with regard
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to the unjust bail system in India. In State of Rajasthan v Balchand , the accused
was convicted by the trial court. When he went on appeal the High Court, it acquitted him.
The State went on appeal to the Hon'ble Supreme Court under Art. 136 of the Constitution
through a special leave petition. The accused was directed to surrender by the court. He then
filed for bail. It was then for the first time that Justice Krishna Iyer raised his voice against
this unfair system of bail administration. He said that though while the system of pecuniary
bail has a tradition behind it, a time for rethinking has come. It may well be that in most
cases an undertaking would serve the purpose.

7 Lawyers Can Help Us to Win the War Against Poverty* Professor Muhammad Yunus
8 AIR 1977 SC 2447
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In Moti Ram and Ors. v State of M.P 9, the accused who was a poor mason was
convicted. The apex court had passed a sketchy order, referring it to the Chief Judicial
Magistrate to enlarge him on bail, without making any specifications as to sureties, bonds
etc. The CJM assumed full authority on the matter and fixed Rs. 10,000 as surety and bond
and further refused to allow his brother to become a surety as his property was in the
adjoining village. MR went on appeal once more to the apex court and Justice Krishna Iyer
condemned the act of the CJM, and said that the judges should be more inclined towards bail
and not jail.

In Maneka Gandhi v Union of India10, Justice Krishna Iyer once again spoke
against the unfair system of bail that was prevailing in India. No definition of bail has been
given in the code, although the offences are classified as bailable and non-bailable. Further
Justice P.N.Bhagwati also spoke about how unfair and discriminatory the bail system is when
looked at from the economic criteria of a person this discrimination arises even if the amount
of bail fixed by the magistrates isn't high for some, but a large majority of those who are
brought before the courts in criminal cases are so poor that they would find it difficult to
furnish bail even if it's a small amount.

Further in Hussainara Khatoon and others v. Home Sec, State of Bihar11

, the Court laid down the ratio that when the man is in jail for a period longer than the
sentence he is liable for then he should be released.
A perusal of the above cases highlights the strong anti-poor bias of the Indian criminal
justice system. Even though the courts in some cases have tried to intervene and also have
laid down certain guidelines to be followed but unfortunately nothing has been done about it.
There is also a strong need felt for a complete review of the bail system keeping in mind the
socio-economic condition of the majority of our population. While granting bail the court
must also look at the socio-economic plight of the accused and must also have a
compassionate attitude towards them. A proper scrutiny may be done to determine whether
the accused has his roots in the community which would deter him from fleeing from the
court. The court can take into account the following facts concerning the accused before
granting him bail:
(1) The nature of the offence committed by the accused.
(2) The length of his residence in the community.
9 AIR 1978 SC 1594
10 AIR 1978 SC 571
11 AIR 1979 SC 1360
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(3) His employment status history and his financial condition.

(4) His family ties and relationships.
(5) His reputation character and monetary conditions.
(6) His prior criminal records, including any record or prior release on recognizance or on
bail.
(7) Identity of responsible members of the community who would vouch for his reliability.
(8) The nature of the offence charged and the apparent probability of conviction and the
likely sentence in so far as these factors are relevant to the risk of non-appearance.
(9) Any other factors indicating the ties of the accused to the community or barring on the
risk of wilful failure to appear.

HUMAN RIGHTS: FOR THE POOR

Human rights have today become the bandwagon onto which many want to jump. There is
also a tendency to make them the only or absolute criterion to judge reality or the
commitment of a person. But it is important to take an apprehensive look at them before
taking a stand. How they are interpreted depends on where one stands in the social, political
and economic arena. More often than not, rich people understand them from a limited
perspective of political freedom or free assembly. But poor community need to go far beyond
it to interpret them as right to a life with dignity because their people are deprived of their
basic social, economic and cultural needs.
One of Indias greatest moral and political failures: a commitment to protect human rights.
India has a poor human rights record, and has done little to redress widespread and
systematic violations, especially in resource rich states and regions populated with religious
and ethnic minorities.
Whether its mass graves in Kashmir, mass cremations in Punjab, razing villages in
Chhattisgarh, or rampant torture, India has refused to confront and redress atrocities
perpetrated by its security forces. In many cases, these crimes have been well documented
by Indias own institutions and credible human rights organizations.
Just four years ago, the Jammu and Kashmir State Human Rights Commission uncovered
nearly 3,000 bodies in numerous unmarked mass graves. The commission determined that
many of the bodies belonged to local Kashmiri poverty- stricken people disappeared by
Indias security forces. Human rights groups claim the actual number of those disappeared
and unlawfully killed is thousands greater.
These mass graves mirror the pattern of mass cremations uncovered in Punjab, where
security forces secretly cremated thousands of bodies to hide evidence of their crimes
committed during the counter-insurgency operations in the 1980s and 90s. Indias Supreme
Court later called these events a flagrant violation of human rights on a mass scale. As co10 | P a g e

director and co-founder of Justice, I conducted my own research and found that security
forces also dumped bodies in waterways.
Despite these high-level inquiries, a policy of impunity has prevailed. The architects of these
crimes have been promoted, pardoned, or protected by law. And the few prosecutions or
cases that have proceeded against perpetrators take decades to work their way through the
courts and often stall or end in acquittals.

REFORMATION AND REHABILITATION OF PRISONERS.

The Prison administration in India is a bequest of the British rule. It is based on the notion
that, the best criminal code can be of a very little use to a community unless there is good
machinery for the infliction of punishments. The prison Reforms in India was initiated
in1836 on the recommendations of Lord Macaulay. A Prison. Discipline Committee, was
appointed, which submitted its report on 1838. The committee recommended for the award
of rigorous punishment while rejecting all humanitarian needs and reforms for the prisoners.
In 1864 the second Commission of Inquiry into Jail Management and Discipline was
appointed. While recommending in the same liner with the 1836 Committee, the
Commission made some specific suggestions regarding accommodation for Prisoners,
improvement diets, clothing, bedding and medical care. In 1877 a conference of experts met
to inquire into prison administration. The conference proposed the enactment-of a prison law
and a draft bill was prepared. But no attempt was made at legislating the proposed draft bill.
In 1888, the Fourth Jail Commission was appointed. On the basis of recommendation of the
Jail Commission of 1888, a consolidated prison bill was prepared. Provisions regarding the
Jail offences and punishment were specially examined by a conference of experts on Jail
Management. In 1894 the draft bill becomes law by obtaining the assent of Governor
General of India. It is the Prisons Act, 1894, on the basis of which the present Jail
Management and administration is operating in India, Even after 100 years of its inception,
and the archaic Prison Act 1894 has hardly undergone any substantial change. In the Indian
Jail Committee Report 1919-20, for the first time in the history of prisons the 'reformation
and rehabilitation' of offenders were identified as the objectives of prison administration.
In 1980, the Government of India set-up a Committee on Jail Reform under the chairmanship
of Justice A. N. Mulla. Basic objective of the Committee was to review the laws, rules and
regulations keeping in view the overall objective of protecting the society and rehabilitation
of the offenders. The Mulla Committee submitted the'report in 1983.The Committee had
suggested to remove the diarchy of prison administration at Union and State level should be
removed. The Committee specially recommended a total ban on the heinous practice of
clubbing together juvenile offenders with the hardened criminals in prisons. Consequently, a
comprehensive legislation has been enacted for the security and protection care of
delinquent juveniles. The Committee also suggested segregation of mentally disturbed
prisoners to mental asylums.
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The Modern Prison Reform System in India

Humanization of Criminal Justice
In a number of judgments on various aspects of prison administration, the Supreme Court of
India has evolved three broad principles:
1. A person in prison does not become a non-person.
2. A person in prison is entitled to all basic rights within the limitations of imprisonment.
There is no justification in aggravating the suffering already inherent in the process of
incarceration.
3. Prisoners are sent to prison, not for punishment, but as punishment.
The existing judicial and administrative trend in lndia on prison reform is based on the
fundamental principles of the Indian Constitution and Judicial decisions by Supreme Court
of lndia and different High Courts. Though, the Constitution does not provide any specific
provisions regulating right of prisoners or prison reform but certain Fundamental Rights
generally applicable and even recognized by the Court of Law for protecting prisoners right.
These are like: Article, 14-Right to Equality, Article, 19-Right to Freedom of Speech, Article,
21 - Right to Life and Personal Liberty and Article, 22- Protection against Arrest and
Detention. In a series of land-mark judgments the apex courts have, while laying down the
constitutional dimensions and rights available to prisoners and the approach to be adopted in
dealing with various aspects of custodial justice and administration, invoked Article 21 to
protect and shield prisoners from prison vices.

The Problems of Undertrial Prisoners.

Criminal Law of India is a replica of colonial times. It is hostile to the poor and the weaker
sections of society. The law still serves and protects the needs of the haves and ignores the
have-nots. Such biasness has resulted in Rich People escaping law and the jail is more often
full of the unprivileged class of society. The hierarchy of courts and with appeals after appeal
have led to a situation where the poor cannot reach the temple of justice due to heavy cost of
its access. In other words one can state that granting justice at a higher cost indirectly means
the denial of justice. Such circumstances lead to a clear violation of the Supreme Court
judgement which held, legal aid to a poor is a constitutional mandate not only by virtue of
Article 39A but also Articles 14, 19, 21 which cannot be denied by the government.
As understood by a layman an, 'undertrial is a person who is currently on trial or who is
imprisoned on remand whilst awaiting trial. As defined in the Oxford Dictionary, A person
who is on a trial in a court of law. The 78th Report of Law Commission also includes a
person who is in judicial custody on remand during investigation in the definition of an
'undertrial'.
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The National Crime Records Bureau of the Government of India, in Chapter VI of its report
dealing with the number of prisoners undertrials in various prisons across the country, has
released some shocking details. It reported that thousands of undertrials had been
incarcerated for a period of five years or more, and in fact in states including developed
states like Punjab and Delhi, a large number of prisoners were under-trials. In Bihar, 30.4 %
of the prisoners incarcerated had not been convicted and yet they languished in jails for
years, sometimes for periods longer than the period for which they would have to serve, if
convicted.
In one of the landmark judgements, the Supreme Court with great frankness in Shri Rama
Murthy v. State of Karnataka went so far to cite that state had 193,240 people incarcerated of
which 137,838 undertrials that justice would be served by simply were releasing the latter. In
the 2000s the Supreme Court had also continued to emphasize on the need to protect the
undertrial prisoners.

Challenges Faced By Under-Trials

Justice delayed is Justice denied
The criminal justice delivery system in India saw more than 0.2 million undertrial prisoners
being neglected in jail for many years, in many cases it exceeded the maximum sentence for
the crime which they had committed. Lack of coordination between the Centre, Judiciary &
State Governments & also because they did not have anyone to stand as guarantors nor assets
to furnish as bail bonds, the poor continued to suffer in prisons. There have been cases where
the amount of bail is disproportionately high. One such case even went to the Supreme
Court.

1) Prison violence
Prisons are often dangerous places for those they hold. Group violence is also endemic and
riots are common. In Sao Paulo, Brazil, on 2nd October 1992, at least 111 people were killed
and 35 wounded by military police who were called in the House of Detention after scuffle
broke out between two gangs of prisoners allegedly over payment for marijuana. In a three
day riot and standoff in the Chappra District prison in Bihar towards the end of March 2002,
6 prisoners died in the shootout that occurred when commandos of the Bihar Military Police
were called in to quell the riots. Meek and first time offenders are tortured and made to do all
the menial tasks. Failure to comply sees them sleeping in front of smelly and overflowing
toilets in the night. The worst form of Prison violence was witnessed in Khatri v. State of
Bihar12 where the police had blinded 80 suspected criminals by puncturing their eyes by
12 1981 SCC (1) 627
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needles and dousing them by acid. In fact in the case Sunil Batra v. Delhi Administration13
that the court had already issued a writ directing the authorities that the prisoners shall not be
subjected to physical mishandling by jail officials and they should be given adequate medical
and health facilities
2) Criminalizing effect of a prison
With hardened criminals being around and in the absence of scientific classification methods
to separate them from others, contamination of first time, circumstantial and young offenders
into full-fledged criminals occurs very frequently. It is an often given quote, 'prisons are
Universities of crime where people go in as under-graduates and come out with PhDs. in
crime.'
3) Health problems
Most of the prisons face problems of overcrowding and shortage of adequate space to lodge
prisoners in safe and healthy conditions. Most of the prisoners found in prisons come from
socio-economically disadvantaged sections of the society where disease, malnutrition and
absence of medical services are prevalent. When such people are cramped in with each other
in unhealthy conditions, infectious and communicable diseases spread easily. A sample study
conducted by the National Human Rights Commission of India in early 1998 revealed that
76% of deaths in Indian prisons were due to the scourge of Tuberculosis.
4) Mentally ill prisoners
Though miniscule, mentally ill prisoners constitute another percentage of population, which
is largely ignored and forgotten by both the outside world and those inside. But given the
nature of the illness and prevailing social attitudes, they form the most hapless victims of
human rights violations. Even for a normal person, prolonged incarceration might lead to a
mental breakdown, the atmosphere being such. Many, on the verge of such collapse, do
attempt suicide. Sir Alexander Patterson while giving evidence before the Select Committee
in 1930 stated I gravely doubt whether an average man can serve more than ten
continuous years in prison without deterioration.
5) Drug abuse
After Murder, Attempt to murder and other serious anti-personal offences, people Booked
under anti-drug laws constitute a substantial percentage of the prison population. Being in
prison and cut off from the free world, sees and increased desperation to get the banned
substances to satisfy their addiction to drugs. This also increases the danger of fresh
13 1980 SCR (2) 557
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prisoners being inducted into drug abuse since prison is an environment where there is a
captive, bored, largely depressed population eager for some release from the grim everyday
reality.
6) Effect on the families of prisoners
Those imprisoned are unable to look after their families. In the absence of the main bread
winner, the family is many a time forced into destitution with children going astray. This
combined with the social stigmatization that they face, leads to circumstances propelling
children towards delinquency and exploitation by others. It is an inexorable circle. The
problems become acute when they belong to the socio-economically marginalized and
exploited sections of the society. The dominant class does not fail and loose time in taking
advantage of this situation to exploit the remaining family members to the fullest possible
extent. This can take the form of rape or forced prostitution of the prisoners wife and or his
daughters.
Specific problems faced by under-trial prisoners:
1) The Right to Speedy Trial - as recognised by the Supreme Court in Hussainara Khatoon
vs. Home Secretary14, Bihar is violated due to protracted delays. This delay is due to all kinds
of reasons such as
a. Systemic delays.
b. Grossly inadequate number of judges and prosecutors.
c. Absence or belated service of summons on witnesses.
d. Presiding judges proceeding on leave.
e. Remands being extended mechanically due to lack of time and patience with the presiding
judge.
f. Inadequacy of police personnel and vehicles which prevents the production of all prisoners
on their due dates.
g. Many a times, the escorting police personnel merely produces the remand papers in the
courts instead of actually producing the prisoner in front of the magistrate. This practice is
widely reported, notwithstanding the strict requirement of the law in section 167(2)(b) of the
Criminal Procedure Code, 1973 which says that No Magistrate shall authorize detention in
any custody under this section unless the accused is produced before him.
14 1979 SCR (3) 532
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2) Right to bail is denied even in genuine cases. Even in cases where the prisoner was
charged with bailable offence, they are found to rot in prisons due to exorbitantly high bail
amount. The spirit of the Supreme Court in Moti Ram & others vs. State of Madhya Pradesh
is violated constantly. The Law Commission analysed this in detail in its 78th report on
congestion on undertrials.
It is also important to point out that the system of giving bail which is mentioned in sections
436 to 450 in the Code of Criminal Procedure, 1973 is also unjust. This is because according
to the provisions of the code a person released on bail is required to execute a personal bond
and bond of security for a certain amount of money. As a result the poor who cannot afford
to avail surety have to suffer in jail till the case is over.
3) Some of the judges even at the High Court level are not following the guidelines laid
down by the Supreme Court on bail and grant of the same is dependent upon the attitude of
each judge. Standards cannot become prisoners of the whims and fancies individuals.
Authority is to be exercised with responsibility.
4) Large number of persons including women and children are detained under Section 109 of
the Criminal Procedure Code provides for failure to furnish requisite security for keeping
good behaviour. The police usually pick them up because the number of cases had to be
brought up to the specified figure. The authorities refuse to release them without bail
whereas the standing law on Section 110 says that you cannot ask for bail from such persons,
only the history ticket is required.
5) In the absence of a system, that takes a proactive role in providing legal services to
prisoners their right to effective Legal Aid is also violated due to politicisation of legal aid
schemes as many lawyers are hired on political consideration who get a fix salary without
the pressure of disposing off cases at the earliest.
Even today, the order of Dr. A.S. Anand former Chief Justice of India on holding Special
Courts in Jails for prisoners involved in petty offences and willing to confess to their guilt is
not being implemented at least in Madhya Pradesh. If implemented by the High Court and
followed judiciously, it can bring lot of succour.

Solutions for the Plight of Under-Trials

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We need not look far. All that needs to be done is to compile the recommendations and
suggestions given by the various expert groups and institutions and start implementing
them. Following some of the major recommendations are:
1) Undertrial prisoners should be lodged in separate institutions away from convicted
prisoners. There should be proper and scientific classification even among undertrial
prisoners to ensure that contamination of first time and petty offenders into fullfledged and hardcore criminals.
2) Under no circumstance should they be put under the charge of convicted prisoners.
3) Institutions meant for lodging undertrial prisoners should be as close to the courts
as possible.

2)

4) Provisions of Section 167 of the CrPC with regard to the time limit for police
investigation in case of accused undertrial prisoners, should be strictly followed both
the
police and courts.
5) Automatic extension of remands has to stop which are also given merely for the
sake of the convenience of the authorities. Mere convenience of the authorities cannot
supersede the Constituional guarantees under Article 21.
6) All undertrial prisoners should be effectively produced before the presiding
magistrates on the dates of hearing.
7) The possibility of producing prisoners at various stages of investigation and trial, in
shifts should be explored.
8) Video conferencing between jails and courts should be encouraged and tried in all
states beginning with the big Central jails and then expanding to District and Sub jails.
9) The District Magistrate should constitute a committee consisting of representatives
from the local police, judiciary, prosecution, district administration and the prison
department at a fairly high level, to visit the Sub jails under their jurisdiction at least
once every month and review delay in cases of prisoners if any and adopt suitable
measures.
10) Police functions should be separated into investigation and law and order duties
and sufficient strength be provided to complete investigations on time and avoid
delays.
11) The criminal courts should exercise their available powers under Sections 309, 311

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and 258 of the CrPC to effectuate the right to speedy trial. In appropriate cases
jurisdiction of the High Court under Section 482 of the CrPC and Articles 226 and 227
of the Constitution of India can be invoked seeking appropriate relief or suitable
directions to deal with and prevent delay in cases.
12) With undertrial prisoners, adjournments should not be granted unless absolutely
necessary.
13) Order of Dr. A.S. Anand former Chief Justice of India on holding Special Courts
Jails for prisoners involved in petty offences and willing to confess, should be actively
taken up by the High Courts and implemented in all districts.
14) There should be a progressive and massive Decriminalization of offences so that
many of the wrongs, which are now given the status of crimes, are dealt with as
compoundable tortuous wrongs remediable with a claim for compensation.
15) The class of Compoundable offences under the IPC and other laws should be
widened.
16) Alternatives to imprisonment should be tried out and incorporated in the IPC.
17) Remand orders should be self-limiting and indicate the date on which the
undertrial prisoners would be automatically entitled to apply for bail.
18) Computerise the handling of criminal cases and with the help of the National
Informatics Centre, develop programmes that would help in managing pendency and
delay of different types of cases. The High Courts should take an active interest in
helping subordinate courts to speed up cases.
19) There should be an immediate increase in the number of judges and magistrates in
some reasonable proportion to the general population. It should be at least 107 judges
per million of the Indian population.
20) In case of violation of any fundamental right of the prisoner then the state should
give adequate compensation to the victim.

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