Condition of Undertrials in India: Problems and Solutions

Author(s): MURALI KARNAM and TRIJEEB NANDA

Source: Economic and Political Weekly, Vol. 51, No. 13 (MARCH 26, 2016), pp. 14-16
Published by: Economic and Political Weekly
Stable URL: https://www.jstor.org/stable/44004037
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Condition of Undertrials in India
Problems and Solutions
MURALI KARNAM, TRIJEEB NANDA
A large number of the poor,
the Dalits and people from
the minority communities are
languishing in jail as undertrials Justice Bench directed the governmentall criminal charges. Going by the nor-
because of a property-based
bail system and a poor legal aid
mechanism. This article suggests
ways in which both these tools
could be strengthened for speedycriminal procedure code and develop
dispensation of justice.
Murali Karnam (i muralLkarnam@gmail.com ) they possess any valuables, nor could they
teaches at the Tata Institute of Social Sciences, arrange such a large sum from others. has a duty to prevent the accused from
Mumbai; Trijeeb Nanda is a Tata Trust Fellow,
TISS, based in Odisha.
14
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in a hut with her daughter and teenage
son. Both the women work as domestic
help to meet their ends. They primarily
survive on the ration from the public dis-
tribution system. Since their imprison-
ment, the teenage son had to drop out of
school. He started working in various
shops for food and shelter. The vulnera-
bility of the adolescent has also has
has turned its attention on the pushed him towards consuming drugs.
Once has plight turned again of poor theof
plight its attention
poor Supremeprisoners
prisoners on Court and theand Exactly after six months, the court ac-
undertrials. On 5 February 2016, its Socialquitted the mother and daughter from
to execute a series of reforms to amelio- mal standards of time taken for comple-
rate the condition of prisons. The state tion of trial, this was swift. The repeated
should engage competent legal aid law- applications from a conscious lawyer for
speedy trial nudged the court towards
yers, consider the release of undertrials
under Sections' 436 and 436A of the disposing off this case swiftly.
Shanti's case is not exceptional. Accor-
information management systems to ding to the National Crime Records
address overcrowding in Indian prisons, Bureau (ncrb) data of 2014, the percent-
especially in Maharashtra, Uttar Pradesh age of undertrial prisoners (utp) has
and Dadra and Nagar Haveli, the Supreme been consistently increasing over the
Court said. The legal aid for poor should years (see Figure). The guilt of about
not become poor legal aid, the bench three-fourths of the prison population is
thundered. It condemned, in unequi- yet to be proved and the overall disposal
vocal terms, the anti-poor property-based of cases and conviction rate is also very
bail system.1 It was very categorical poor. It means majority of utps are
when it said: "It is against the spirit of found innocent like Sahu and acquitted
law to incarcerate people only because at the end of trial. There is no doubt that
of their poverty." It ordered the legal ser- poor, Dalit and tribal backgrounds have
vices authority to take up cases of pris- a disproportionate representation in pri-
oners who are unable to furnish bail and son and also undertrials, without the
are still in custody. Figure: Percentage of UTPs in India
The following is 68
the common scenar-
io of most under-
trials. Shanti Sahu
and her 18-year-old 64
daughter were ar- 63
2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
rested on charges Source: National Crime Records Bureau (2004-14).
of causing grievous
hurt and criminal intimidation to their ability to furnish the bail amount (see
neighbours on 13 June 2015.2 They wereTables 1 and 2, p 15).
sent to jail not because their bail applica-
tion was rejected, but because they were Liberty Based on Property
unable to engage an advocate. TheyThe court sets an accused free on bail
secured bail when their employer arrangedwhen it believes that the accused is not a
for an advocate. The court decided to threat to the ends of justice. It has a duty
grant bail on the condition of depositingto see that the prosecution is completed
in a fair and fearless condition in which
Rs 20,000. It was clear that they would not
both accused and victim get an equal op-
be able to get out of jail because neither did
portunity to make their case. The state
Shanďs husband deserted her 10 influencing the process in his favour.
years ago. Since then she has been Once the court is convinced that there
living
march 26, 2016 vol li no 13 0353 Economic & Political weekly
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are no such possibilities, he is granted production before the magistrate but control
the crime is considered as one of the
bail, and then the issue of security of information does not reach them. The primary parameters to assess its perfor-
property to secure his presence for trial standing legal aid counsels are supposed mance. There can also be democratic
arises. Unfortunately, the legal system to represent them when they are pro- means of controlling crime but it is not a
presumes only fear of forfeiting property duced before the magistrate. In most popular expectation. In a society which
guarantees his availability. As a result, cases, the legal aid counsels neither con- is polarised on many lines, evolving a
people who do not possess even minimal tact the prisoners nor their family mem- democratic means of controlling crime
property become unequal before the law. ber to prepare the arguments. is neither easy nor appreciated. These
Why should only property be the cri- It is important to ask why the legal aid factors primarily structure the attitude
terion for securing liberty? Why cannot system functions this way. The system is and understanding of the government as
there be other forms of securities?3 If the presided by the judiciary itself, though a party to prosecution. As a result, the
judiciary is serious about ensuring the rules and resources are made available government deploys its enormous pow-
equality of liberty and dignity to all, a by the state. The selection of legal aiders - legal and financial - against the
relook at the functioning of bail system panels is neither done with care nor is aaccused in the adversarial system of
is indispensable. careful criteria evolved. Advance con- prosecution. At present except the cor-
sultations between prisoners or theirporate bodies, no individual citizen can
Dysfunctional Legal Aid family and counsels to strategise legalever match the might of the government.
Data from the ncrb and the frank admis- intervention are never heard of. The ex- At one point in time, the well-meaning
sion of the Supreme Court seems to sug- pectations of prisoners and performance judiciary realised that the fight is be-
gest that legal aid for the poor is still a of the counsels do not meet each other.
tween unequal parties of gargantuan
distant dream. Prisoners are languishing Yet there are hardly any instances of proportions. The citizen as accused can-
for years in jail before a legal aid counsel removing any counsel on grounds of not defend his life and liberty in a fight
Table 1: Caste-wise Distribution of UTPs in India non-performance. The quality against the state without adequate sup-
Years of services provided is not re- port. The idea of legal aid thus has its
viewed. The lower judiciary roots in realisation of inequalities of
2004 44,470 (21.62) 25,073(12.19) 55,080(26.78) 2,05,656
looks aside as the system resources between the accused and gov-
2005 43,684(19.22) 27,166(11.95) 90,355(39.75) 2,27,285
remains dysfunctional but ernment and their invariable impact on
2006 54,210(23.14) 30,410(12.98) 65,537(27.97) 2,34,310
higher judiciary periodically the outcome of prosecution.
2007 54,324(22.50) 29,941 (12.40) 68,115(28.22) 2,41,413
2008 54,069(21.77) 29,306(11.80) 76,087(30.63) 2,48,376
wakes up. What explains the This legal aid needs to be organised by
2010 50,960(21.96) 29,709(12.80) 70,123(30.22) 2,32,011 dysfunctionality and indiffer- the state through appropriate legislation
2011 53,794(22.30) 31,652(13.12) 71,104(29.48) 2,41,200 ence of the system? Who has and allocation of resources - human and
2012 57,197(22.44) 33,900(13.30) 75,723(29.71) 2,54,857 the stakes in keeping the sys- financial.4 However in a world where
2013 59,326(21.30) 31,581 (11.34) 87,848(31.54) 2,78,503 tem as it is? All these ques- controlling crime by any means takes
2014 57,045(20.16) 31,648(11.19) 88,448(31.27) 2,82,879 tions perhaps are relevant in primacy, it is expected that many thou-
Source: National Crime Records Bureau (2004-14). sands would be incarcerated without
the larger context.
is appointed. When they are appointed, proving their guilt, legal aid be damned.
Role of the Government
the UTPs do not trust their efficacy. The
Conclusions
ceremonial and cursory visits by legal
When we discuss the plight of prisoners
aid counsels and magistrates to prisons
and poor legal aid we often forget Equality
the as an ideal exerts strong moral
are not able to address this gargantuan force in modern life. But we are not sure
fact that the government has a dual role.
problem. in practice what exactly we mean when
On the one hand it has the primary duty
The undertrials are routinely allotted we say everyone is equal before the law.
of controlling crime. In competitive poli-
legal aid counsels at the time of first tics, the ability of the governmentAt
to present equal protection of law is
Table 2: Educational Standards of UTPs mediated by property relations. The un-
Year Illiterate Below Class X Above X and Graduate Postgraduate Holding Tech equal conditions of life like property and
caste do determine the fate of the citi-
2004 83,572(38.49) 89,000(40.98) 33,984(15.65) 7,936(3.65) 1,690(0.77) 948(0.43)
zens and value of law.
2005 82,628(34.85) 1,13,885(48.03) 28,763(12.13) 8,398(3.54) 1,600(0.67) 1,802(0.76)
2006 93,313(38.04) 1,03,548(42.22) 35,313(14.39) 9,559(3.89) 2,479(1.01) 1,032(0.42) To overcome the traditional inequali-
2007 88,312(35.22) 1,08,642(43.33) 39,861 (15.89) 9,762(3.89) 2,806(1.11) 1,344(0.53) ties of "status societies," the idea of equ-
2008 90,809(35.21) 1,08,077(41.90) 41,903(16.24) 10,783(4.18) 3,423(1.32) 2,933(1.14)
ality before law was invented in Western
2010 78,836(32.83) 1,02,098(42.52) 44,594(18.57) 10,232(4.26) 2,893(1.20) 1,445(0.60)
societies. While achieving greater equa-
2011 74,203(30.76) 1,02,852(42.64) 48,644(20.16) 10,698(4.43) 3,154(1.30) 1,649(0.68)
2012 76,626 (30.06) 1,10,385 (43.31) 49,871 (19.56) 12,459 (4.88) 3,471 (1.36) 2,045 (0.80) lity between citizens of different social
2013 80,393(28.87) 80,393(28.86) 56,806(20.39) 16,233(5.82) 5,056(1.81) 2,642(0.95) backgrounds is a continuous process,
2014 82,735(29.25) 1,19,370(42.19) 55,605(19.65) 17,000(6.00) 5,202(1.83) 2,967(1.05) the indifferent criminal justice system
Bracket figures are in percentage. seems to be reinforcing the traditional
Source: National Crime Records Bureau (2004-14): The educational background of the accused tells volumes about their
ability to negotiate their freedom at various stages with the criminal justice system. inequalities behind bars. This is only
Economic & Political weekly EH3B3 march 26, 2016 vol li no 13 *5

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COMMENTARY

the
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imitating the religions that claim all are
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damned are different - everybody is were muni
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equal before law but the citizens without cial should
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role, they still fall within the broad

Regulating the Regulators definition of the executive branch of the
state, and are accountable to the legisla-
Role of Parliament ture. Given this, the question arises as to
how the performance of regulators is
monitored to ensure that the public
KAUSHIKI SANYAL interest is properly served. To simultane-
ously ensure regulatory independence and
India established several implementation of regulations consistent

independent regulators regulatory agencies is a relatively with government policies, legislative

The regulatory recent
recent global phenomenon
phenomenon in muchsurge
of agencies in is independent in a relatively much of oversight of regulators is necessary.
in sectors like electricity,
the developing world, including India. In this article I will discuss briefly how
telecommunications and
Originating in the United States (us), effectively regulators in India are scruti-
insurance after economic the concept of independent regulation nised, the debates about strengthening
liberalisation. This article spread to the European Union (eu), and oversight and different models of over-
to the developing countries in the 1990s. sight adopted in selected countries.
discusses how these regulators
A study (Jordana et al 2011), covering 48
can be effectively scrutinised
countries and 16 sectorsand
over 88 years Independent Regulators in India
(1920-2007), found that the number of
oversight by legislative bodies India's economic liberalisation in the
new regulators created per year increased 1990s opened the economy allowing the
strengthened.
from less than five till the 1980s to more private sector to operate in areas which
than 20 from the 1990s to 2002 (reach- were earlier government monopolies. The
ing peaks of more than 30 new agencies shift in the approach necessitated the
per year between 1996 and 2001). regulation of sectors where private
What are independent regulators? operators were permitted. Following the
Mark Thatcher, political scientist at the broad model adopted by several countries,
London School of Economics and Political India established independent regulators
Science (Thatcher 2002), defined inde- to guarantee a level playing field for
pendent regulators as "a body with its public and private agencies and to ensure
own powers and responsibilities given their independence from government
under public law, which is organisation- departments. It established independent
ally separate from ministries and is regulators through statutes in a variety
neither directly elected nor managed by of sectors such as electricity, telecom-
elected officials." munications, insurance, securities mar-
But the existence of regulators also ket, and oil and gas.
raised some fundamental questions of Policymakers find significant advan-
accountability. As the House of Lords tages in governance through a regulator.
Committee on Constitution observed, It generally does not share the "social"
regulators do not exist in a vacuum outside obligations of the government; nor is it
government) policy (Select Committee on expected to be affected by the pressures
Kaushiki Sanyal ( kaushiki.sanyal@gmail.com
is an independent policy consultant, based
the in
Constitution 2004). While regulators of "interest" groups. It can provide a level
Delhi.
have independence in performing their playing field to all participants without

l6 march 26, 2016 vol Li no 13 E33S3 Economic & Political weekly

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