Justice Under Trial: A study of pre-trial detention in India
Around 2.8 lakh Indians are being held in prison during their trials or awaiting trial, without having been convicted of a crime. Many have been awaiting trial for years, some for a longer period than their maximum formal sentence. These prisoners who are known as ‘undertrials’ account for two out of three prisoners in India’s prisons – a percentage far higher than other democracies around the world. India has the third highest undertrial population in Asia.
Undertrial detention is India’s most ignored problem. On 12 July, 2017, Amnesty International India hosted a discussion: Bail not Jail – A discussion on Undertrial Detention at Bangalore International Centre. The discussion centred around Amnesty International India’s briefing on undertrial detention across the country’s district and central jails and focussed on several aspects of undertrial detention.
The panelists include:
Vetrimaaran – Film Maker; Dr. Murali Karnam – Expert on prison reforms; Kuchanna Srinivasan – Ex-ADGP-IGP Prisons Karnataka;
Leah Verghese – Sr. Campaigner & Researcher
Under India’s Constitution, prison management is the responsibility of state governments. To assess the effectiveness of various legal safeguards to prevent excessive undertrial detention, between 2014 and 2016, Amnesty International India filed nearly 3000 Right to Information applications to every district and central prison in the country and to various state government departments. The applications sought information broadly under four categories:
(a) the implementation of section 436A of the Code of Criminal Procedure (CrPC)
(b) the rate of production of undertrials in court for their hearings
(c) the adequacy of legal aid provided
(d) adherence to guidelines on undertrial detention issued by the Union Home Ministry in 2005.
In addition, researchers interviewed undertrial prisoners at the Bengaluru Central Prison, legal aid lawyers, public prosecutors, academics, and civil society organizations.
Amnesty International India makes the following recommendations:
To the National Legal Services Authority:
• Standardize the remuneration paid to legal aid lawyers across India, and ensure that lawyers are paid competitive salaries in a timely manner.
To the Union Ministry of Law and Justice:
• Set up a computerized database and tracking system for prisoners in all prisons, which will regularly alert prison authorities on undertrials eligible for release which will be maintained and updated at the state-level.
To State Legal Services Authorities:
• Appoint more legal aid lawyers according the the needs of the state.
• Strengthen the monitoring of legal aid lawyers’ effectiveness to ensure accountability and quality representation. Ensure that legal aid lawyers at the state, district and taluk levels are required to submit regular reports on the status of their cases, and hold lawyers failing to do so accountable.
• Ensure that legal aid lawyers are paid on a monthly basis.
• Undertake regular awareness programs in prisons to ensure that all undertrials are informed about their legal rights, including access to legal aid, procedural safeguards and bail.
To State police departments:
• Collaborate with state legal services authorities to ensure that legal aid is provided at the time of arrest. • Create a separate reserve of police personnel dedicated to providing escorts for undertrials to be taken to court.
• Ensure that alternatives to undertrial detention are used as early as possible, and that undertrial detention is used only as a last resort, and shall not last any longer than necessary.
To State governments:
• Monitor the implementation of the Home Ministry guidelines, and hold accountable officials who fail to meet their obligations.
• Ensure that district and central prisons maintain updated lists of undertrials and the details of the cases against them, which are sent to district prosecution officers, the Prisons Department, the Undertrial Review Committee and the relevant legal services authority, and made available to all non-official visitors.