Helpless Prisoners

On November 26, 2022, Pre-sident Droupadi Murmu in her valedictory address at the Constitution Day celebrations held by the Supreme Court brought the spotlight back on overpopulated prisons. “Who are these people languishing in jails?” she asked the gathering that included Union Law Minister Kiren Rijiju and Chief Justice DY Chandrachud. She then replied: “They are the people who don’t know anything about fundamental rights, the preamble, and fundamental duties.”

She referred to excessive litigation costs as a major impediment in the delivery of justice and urged the executive, judiciary, and legislature to jointly evolve an effective dispute resolution mechanism that would eliminate the need for additional jails. But who is listening? Nobody. After some initial furore it is business as usual.

The situation is simply horrible. One Jai Prakash, 47, a resident of Uttar Pradesh’s Chaundali district, reportedly had to spend over 22 years in judicial custody without a trial because there was none to furnish a surety bond of Rs 30,000. How many Jai Prakashs are languishing behind bars as under-trials and pre-trials is anybody’s guess. But the persons in power are thinking over how to construct more jails, not jail reforms.

Experts believe the longstanding problem cannot be solved without police and jail reforms. They say there is an urgent need to redress issues of an understaffed and overworked judiciary, strengthening district legal service authorities, and most importantly, introducing substitutes for money or property-based bail systems in Indian courts. For the poor litigation is luxury; they can hardly afford minimum court expenses.

As per the National Crime Records Bureau, prison overcrowding in 2019 was the highest in the past 10 years. Prison Statistics India report 2021 revealed that the number of convicts in jails decreased by 9.5 per cent, whereas the number of undertrial inmates increased by 45.8 per cent between 2016 and 2021.

According to Aakar Patel, chairman of Amnesty International India, the criminal justice system in modern nation states is designed to correct the imbalance between the state and the accused. “All powers lie with the state, which controls the police and the prosecution and which makes and amends the laws. This imbalance is corrected through due process and an independent judiciary. What has happened in India is that over the years the state has lost interest in the actual prosecution and conviction, perhaps because this is difficult to achieve given the levels of competence in the system. Therefore, it has turned its attention to the denial of bail.” And jails are becoming overcrowded—for all practical purposes they are living hells.

Patel pointed out that three-fourths of India’s prisoners are undertrial prisoners, with a vast majority from underprivileged and minority communities. “The President’s comments should be understood in this light, and as a democratic state committed to upholding the rights of all, it is incumbent on the state to improve its record on this front.”

Tribal groups form a large percentage of those who get customarily imprisoned. President Murmu particularly spoke about the plight of poor tribals in her home State, Odisha, and in Jharkhand. In truth forest laws have criminalised Adivasis since British times and continue to do so even after the Forest Rights Act, 2006, which was passed to correct historic injustices. “It is ordinary tribal people who are caught in the net of cordon-and-search operations and charged. They spend long years in prison before they are eventually acquitted for lack of evidence.”

Additionally, customary Adivasi practices are mechanically crimina-lised, leading to arrests rather than empathetic handling by the police and courts. For instance, youths from tribal communities in Tamil Nadu’s Nilgiris district are routinely arrested under the Protection of Children from Sexual Offences Act (POCSO) for consensually living with under-18 women of their tribe, a common practice among these communities. Members of denotified tribes such as the Pardhis and Lodhas are regularly picked up when any petty crime comes to light because of deep-seated prejudices and laws like the Habitual Offenders Act. The very idea of dubbing a tribe criminal is a colonial hangover.

A combination of factors such as poverty and illiteracy, not understanding the language of the court, ignorance of the law, and ineffective or absent legal representation render the prisoners helpless.

Strangely, political parties, including left parties hardly take the issue of release of prisoners who are kept as under-trials for years. Civil Society oganisations are too weak to develop any powerful movement against injustice meted out to thousands of innocent people all in the name of justice. Then the voice of the human rights bodies is so feeble that the plight of these ‘voiceless people’ remains unheard while the persons in authority simply ignore even international outcry against inhuman conditions in which under-trial and pre-trial prisoners are being forced to live. They are forgotten people; many of them cannot get back what they have lost—their prime youth.


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Vol 55, No. 30, Jan 22 - 28, 2023