CONDITIONS OF UNDERTRIALS PRISONERS IN INDIA WITH REFERENCE TO STATE OF HARYANA
The term under-trial Prisoners denotes an unconvicted prisoner i.e. one who has been detained in prison during investigation, inquiry or trial for the offence he/she is accused to have committed. Under-trials constitute a significant majority of the prison population that is 67.6% against the convict’s ratio of 31.5% in India. There are over three lakh persons who are within prisons as under-trials and presumed to be innocent in the eye of the law. The purpose of keeping under-trials in the custody is to ensure fair trial so that they cannot be in a position to influence or induce the witnesses. Long detention of Under-trials causes a number of problems to the other prisoners and to prison organization as well. A majority of undertrials are poor and denied bail due to excessive bail security and thus trials take years. Usually, they have no lawyers, live in pathetic conditions, they do not have access to adequate medical care, and are likely to be tortured or exploited. The focus of research paper would be to study the statistic report of NCRB, Haryana prison report, world prison report and role play judiciary to check the conditions of undertrials and to make the research study useful to public, prisoners, law experts, police , law students and jail authority by making some valuable suggestion and In order to achieve this objective doctrinal method of research will be adopted.
- WHO IS UNDER-TRIALS
Generally under trial Prisoner those people who are facing trial in any court and during the trial are kept in judicial custody in Prison are known as ‘under-trial Prisoners.In simple terms, Under-trial means an under-trial is one who has been arrested for some crime waiting to appear before the magistrate. Such person is accused and his or her guilt has not proved yet so cannot be called convict. Various statutes have also defined under-trial in similar fashion.
According to Section 2 (xiv) ‘Under-trial Prisoner’’ means a person who has been committed to Prison by Court or competent authority pending trial of a case against him.
National Crime Record Bureau Report 2015 defined as Under-trial Prisoners as a person kept in Prison (judicial custody) while the charges against him being tried.
Hence we can say undertrials a person whose trials is pending in court and he is detained either in police custody or in Prison custody for some purpose
- CLASSIFICATION OF UNDER-TRIALS
Under-trials can be classified in many categories depending upon the nature of the offences for which they are arrested. The nature of the trial of the persons arrested for a crime and their treatment varies with the nature of the offence. Persons committing petty offences are to be released immediately on bail as a matter of right, but those committing graver offences are more likely to be commission to custody for the security of public at large. According to the 78thLaw Commission Report, there are following three types of under-trial Prisoners who are inmates of jail:-
- Persons being tried for non-bailable offences in respect of which courts have declined to pass an order for their release on bail.
- Persons being tried for non-bailable offence, in respect of whom courts have passed order for bail but who, because of difficulty of finding appropriate surety or because of some other reasons, do not furnish the bail bond.
- Persons, who are being tried for bailable offences but who, because of difficulty of finding appropriate surety or because of some other reasons, do not furnish the bail bond.
- POSITION OF UNDER-TRIALS
3.1 ; POSITION OF UNDER-TRIALS IN FOREIGN COUNTRIES
UNDER-TRIALS IN FOREIGN COUNTRIES
|FOREIGN COUNTRIES||PERCENTAGE OF UNDER-TRIALS|
|JAPAN||11.0% (MID 2015)|
|TURKEY||14.1 % (01-04-2016)|
|U.K ENGLAND AND WALES||10.9% (30-06-2016)|
Source ;World Prison brief
3.2; POSITION OF UNDER-TRIALS IN INDIAN JAILS
Under-trials occupy rate in the Prison is considerable higher than that of convicted Prisoners. Such a high presence of under-trials Prisoners and their continued and varying period of stay mainly determine the overcrowding of Prisoners in various jail in the states /UTs. The strength of Prisoners in jail for the year of 2011-15 is as follows, which shows that under-trials Prisoners are more than convicted
Total number of Under-trials/Convicts as on 31.12.2011
|Convicts||1,23,633 (96.1%)||4,959 (3.9%)||1,28,592 (34.5%)|
|Undertrials||1,23,633 (96.1%)||4,959 (3.9%)||2,41,200 (64.7%)|
|Detenues :||2,363 (96.4%)||87 (3.6%)||2,450 (0.7%)|
|Others||640 (93.6%)||44 (6.4%)||684 (0.2%)|
Total number of Under-trials/Convicts as on 31.12.2012
|Convicts||1,22,776 (96.1%||5,013 (3.9%||1,27,789 (33.2%|
|Undertrials||2,43,055 (95.4%||11,802 (4.6%||2,54,857 (66.2%|
|Detenues :||1,832 (95.3%||90 (4.7%||1,922 (0.5%|
|Others||521 (91.9%||46 (8.1%||567 (0.1%|
Total number of Under-trials/Convicts as on 31.12.2013
|Convicts||1,24,263 (95.9%)||5,345 (4.1%)||1,29,608 (31.5%)|
|Undertrials||2,65,815 (95.4%)||12,688 (4.6%)||2,78,503 (67.6%)|
|Detenues :||3,015 (96.9%)||98 (3.1%)||3,113 (0.8%)|
|Others||711 (92.6%)||57 (7.4%)||568 (0.2%)|
Total number of Under-trials/Convicts as on 31.12.2014
|Convicts||1,26,114 (95.9%)||5,403 (4.1%)||1,31,517 (31.4%)|
|Under-trials||2,70,783 (95.7%)||12,096 (4.3%)||2,82,879 (67.6%)|
|Detenues :||3,156 (97.5%)||81 (2.5%)||3,237 (0.8%)|
|Others||802 (88.8% )||101 (11.2%)||903 (0.2%)|
Total number of Under-trials/Convicts as on 31.12.2015
|Convicts||1,28,428 (95.7%)||5,740 (4.3%)||1,34,168 (32.0%)|
|Under-trials||2,70,160 (95.8%)||11,916 (4.2%)||2,82,076 (67.2%)|
|Detenues :||2,490 (97.2%)||72 (2.8%)||2,562 (0.6%)|
|Others||711 (87.0%)||106 (13.0%)||817 (0.2%)|
Table 3.2 Percentage of convicted and under-trials (2011-2015)
|Percentage of Convicts||Percentage of Under-trials|
Source; National Crime Record Bureau Report 2016
3.3 ; POSITION OF UNDER-TRIALS IN HARYANA JAILS
There are 19 jails in Haryana including 3 Central Jails and 16 District Jails. According to latest report July, 2017 the position of undertrials as following
Table 3.3 Population of undertrial Prisoner up to July 2017
|Name of the jail||Convicted||Foreigner||Under-trial Prisoners||Total||Total % of Under-trial Prisoners|
Source official website of Haryana Prison
Thus, now above date show that the numbers of under-trails in jail as double that of convicts and it has increased every year after making governments incentive and Supreme courts guidelines But still the situation is not controlled if we compare the Indian statistics to foreign country (sec table Table ; 3.1-3.2 ) then the position of under-trials in foreign country as compare to India, is very well , because there is average undertrial prisoner only10 to 20 % If we see the position of under-trials in Haryana jail (sec the table ; 3.3),there is also similar conditions as to entire country viz- There is three district where above 85% under-trials and two district where above 75% (sec the table ; 3.3). So as compare to statistics its concluded that the indian jail are overcrowding and this overcrowding affect the health and hygiene, quality of food etc .
Hence the overcrowding has very severe, harmful and dehumanizing impact on the prisoners as also the institutional environment. It also leads to indiscipline and recidivism and thus hampers the process of reformation and rehabilitation of prisoners.
- Role of judiciary
Supreme court and high courts play a vital role to improve the condition of undertrials in india and direct the government in so many time to take appropriate measures regarding undertials , some important landmarks judgments as following –
- Fair procedure
In case of A.K Gopalan v. State of Madrasthe supreme court of India held that the word “ procedure established by law ”under article 21 of the Indian constitution include fair and reasonable procedureand not a mere semblance of procedure prescribed by the State for the deprivation of life or personal liberty of individuals.
- Speedy trial
Speedy trial is paramount human right of undertrials which recognize by supreme court in case of Hussainara khatoonv Home Secretary , State of Bihar.in this case supreme court held that “If a person is deprived of his liberty under the procedure which is not reasonable fair or just, such deprivation would be violate of this fundamental right under Article 21. There can be no doubt about speedy trial and by speedy trial remained reasonably expeditious trial, isn’t integral and essential part of fundamental right to life and liberty enshrined in Article 21”.And after this judgement supreme court give some more guidline regarding speedy justice to undertrials in case of Abdul Rahaman Antulayv R.S Nayakandthose guidelines were reaffirmed by the Apex Court in P. Rama Chandra Rao v. State of Karnataka
- Free legal aid
The Under-trial prisoners has a right to get free legal aid under the provisions of law which made by government and application to the Legal Aid Societies for free legal aid expressing his financial inability to engage a lawyer for defending his/her case. In the absence of free legal for poor undertrials having no means to engage a lawyer to defend themselves, the trial procedure can by no means be termed as fair and just. The Supreme Court in Hussainara Khatoon v.Home Secretary, State of Bihar,held that a procedure which does not make the legal services available to the accused who is too poor to afford a lawyer, and would have to go through the trial without legal assistance, cannot be regarded as reasonable, fair and just. The Supreme Court declared speedy trial as a constituent of legal aid and directed the government to provide free legal aid service in deserving cases.
InM.H Haskot v.State of Maharashtra Supreme Court held that it is statutory duty of government or government duty bound to provide free legal Aid service to accused person Justice V R Krishna Iyer observed that free legal services is an imperative procedural piece of criminal Justice in India. In Sunil Batra v.Delhi Administration (II)Justice Krishna Iyer observed that free legal service to the prison programs shall be promoted by professional organisation recognized by the Court. He recommended that the District Bar Association should keep a cell for this purpose.
- Right to Expression
In case of State of Maharashtra v. Prabhakar Panduranga , the Supreme Court held that the right to personal liberty under Article 21 includes the right to write a book and get it published and when this right was exercised by a detune its denial without the authority of law violated Article 21.
- Access to Information and Interview
InFrancies Corale Mullin v. the Administrator, Union Territory of Delhi & others, the Supreme Court explained the ingredients of personal liberty under Article 21. The case arose out of the rights of a detainee under COFEPOSA to have an interview with his family members and lawyers. The Supreme Court ruled that the right to life and liberty included his right to live with human dignity and therefore a detainee would be entitled to have interviews with family members, friends and lawyers without these severe restrictions.
- Silence and against Narco-analysis/Polygraph/Brain Mapping Test
InSelvi v. State of Karnataka,the full bench of the Supreme Court headed by K.G. Balakrishnan, Former C.J.I.; has declared the conducting of Narco-analysis, Polygraph test and Brain Mapping as unconstitutional and violate of human rights. In order to maintain harmonization balance between the interest of the accused and of investigative agencies, the Hon’ble Apex Court laid down some guidelines in para 223 of the judgment which should be adopted for conducting the `Narcoanalysis technique’ and the `Brain Electrical Activation Profile’ test. And that guideline and tests use in many cases such as Arushi Talwar murder Case, Nithari killings Case, Abdul Telagi Case, Abu Salem Case, Pragya Thakur (Bomb blast Case) etc. being ones which generated lot of public interest
- Supreme Court orders prisoners to be freed over trial delays
On September 06 2014the Supreme Court ordered the country’s notoriously overcrowded jails, to free all prisoners who have served half their maximum term without trial, in a landmark ruling with potential implications for hundreds of thousands of prisoners. As per the Amnesty international reports that more than two-thirds of India’s nearly four million prison inmates are awaiting trial, and many having already spent years in prison.
- Conjugal Visits
Right to conjugal visits first time recognize by Punjab and Haryana High Court in Jasvir Singh Case.In the this case Jasvir Singh &Anr v State of Punjab &Ors(2014)the Punjab and Haryana High Court has allowed conjugal visits and artificial insemination facility for jail inmates subject to certain conditions. Ruling that ‘right to life and personal liberty’ guaranteed by the Constitution under Article 21 which includes the right of convicts or jail inmates to have conjugal visits and artificial insemination, the Court said the same would be regulated by a legally established procedure that will be the sole prerogative of the state.
- To install CCTV camera in all prison
For protection of prisoners right SC in case of D.K Basuv State of W.B on 23 July 2015 held that the central government and all states, to install CCTV cameras in all the prison and also directed union territories and all the state governments to set up state human rights commission and fill up vacancies within 3 months in the commission where there is vacant and must fill up the vacancies in the state human rights commissions within three months time.
- Supreme Court guideline to state that start working and implementation Under Trial Review Committee and 436A of the Cr.P.C
In February2016 , Supreme Court issue some guideline for protection rights and improvement of the undertrials conditions which which is as following
- The Under Trial Review Committee in every district should meet every quarter and the first such meeting should take place on or before 31st March, 2016. The Secretary of the District Legal Services Committee should attend each meeting of the Under Trial Review Committee and follow up the discussions with appropriate steps for the release of undertrial prisoners and convicts who have undergone their sentence or are entitled to release because of remission granted to them.
- The Under Trial Review Committee should specifically look into aspects pertaining to effective implementation of Section 436 of the Cr.P.C. and Section 436A of the Cr.P.C. so that undertrial prisoners are released at the earliest and those who cannot furnish bail bonds due to their poverty are not subjected to incarceration only for that reason.
- The Director General of Police/Inspector General of Police in-charge of prisons should ensure that there is proper and effective utilization of available funds so that the living conditions of the prisoners is commensurate with human dignity. This also includes the issue of their health, hygiene, food, clothing, rehabilitation etc.
- CONCLUSION AND SUGGESTION
Hence after the analysis of above data and Supreme Court judgments its concluded that the undertrials position in India is very bad it may be so many reasons.The government and judiciary have also admitted that most of the undertials are poor people and accused of patty offences and locked away for long times because of that they do not know about their rights and cannot accessed free legal aid. So today undertrials often remain behind bars for years despite the provisions of Section 436A of the Code of Criminal Procedure, which came into effect in 2005. This section mandates the release, on personal bond with or without surety, of undertrial detainees who have been imprisoned for half the maximum sentence they would have received if convicted for the offence they are charged with. This section does not apply to those who could be sentenced to death or life term. But 39% of those charged for crimes under the Indian Penal Code couldn’t be punished with life term or death penalty, prison statistics 2015 show.There is some suggestion which should be helpful to reduce the undertrials in Indian jails
- Implementation of the provisions of Plea bargaining under section 265 A to 265 L of the Criminal Procedure Code 1973 which have been inserted by Code of Criminal Procedure (Amendment ) Act 2005;
- Remuneration for legal aid lawyers be standardised across the country, more legal aid lawyers be employed and
- A separate reserve of police personnel be employed as escorts for undertrials.
- In February,2016 Supreme Court in WRIT PETITION (CIVIL) NO.406/2013 issue some guideline for protection and to improvement of undertrials prisoners conditions which must be implemented as soon as possible.
- Timing of warrant trial cases must be determine by the government by way of making amendment incode of criminal procedure
- Video conferencing facilities must be extended in all the prison in India
- Supreme Court order regarding to install CCTV cameras in all the prisons across the country must be implemented as soon as possible
- The Legal Assistance Establishments scheme must be implemented as soon as possible whichfacilitating easier access to information with regard to the legal services, Justice Dipak Misra, Judge of Supreme Court of India and Executive Chairman, National Legal Services Authority has conceived the idea of establishing Legal Assistance Establishments in all the State Legal Services Authorities on 30thJune 2017.
 Assistant professor , Rayat college of law Railmajra Roper (Punjab).
Section 2 (zb) of the Punjab Prison and Correctional Services Act, 2015 availableat
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