The term ‘Under-trial’ denotes an unconvicted prisoner i.e. one who has been detained in prison during the period of investigation, inquiry or trial for the offence s/he is accused to have committed.
According to The ‘Prison Statistics India 2015’ report, which was released by the National Crime Records Bureau (NCRB) in October 2016, Sixty-seven per cent (two-thirds)of the people in Indian jails are undertrials which amounts to over 200,000 under-trial prisoners.
The National Crime Records Bureau of the Government of India has reported that thousands of under-trials had been incarcerated for a period of five years or more.
In many cases their “stay in prison has exceeded the maximum sentence for the crime” which they had committed.
Most of them are convicted for petty offences.
What is the reason for so many under-trials?
- Indiscriminate arrests: The power of the police to arrest people is very wide and they arrest people even when they cooperate with the investigation and are not likely to evade trial. This results in unnecessary detentions. As the Law Commission in its 268th report remarked that Over 60 per cent of arrests are unnecessary.
- Failure to pay Bail Bond/Surety: Right to bail is denied even in genuine cases due to inability of prisoners to pay the bail amount as many of them are poor
- Slow investigation by police: Investigation by police is slow due to shortage of police personnel and no separation between investigative and law & order functions.
- Slow trials: The Right to Speedy Trial, as recognized by the Supreme Court in Khatoon vs. Home Secretary, Bihar is violated due to protracted delays. This delay is due to various reasons such as:
- Grossly inadequate number of judges and prosecutors.
- “Remands being extended mechanically” by the presiding judge due to lack of time and patience
- Lack of use of provisions: Even though the provisions to avoid unnecessary detention of prisoners have been in existence for years, they are not implemented because of the following reasons:
- Most prisoners are not only unaware of their right to seek release but also too poor to furnish surety.
- Lack of sympathy by the administration
- Failure of Legal aid schemes: Infective implementation of legal aid schemes due to shortage of lawyers. This violates the Supreme Court judgment 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.
- Lack of coordination between the Centre, Judiciary & State Governments in solving the problems.
What are the problems due to large number of Under-trials?
- Criminalizing effect on prison:
- With hardened criminals around due to absence of scientific classification methods, first-time and young offenders convicted for petty offenders often become full-fledged and hardcore criminals.
- Prison violence:
- Prisons are often dangerous places where group violence and mishandling by police is common. Meek and first time offenders are tortured and made to do all the menial tasks.
- The worst form of Prison violence was witnessed in “Khatri v. State of Bihar” where the police had blinded 80 suspected criminals by puncturing their eyes by needles and dousing them by acid.
- All this violates the Minimum Rules for Treatment of Prisoners.
- Health problems:
- Due to large number of under-trials, prisons are overcrowded lacking safe and healthy conditions. Thus communicable diseases spread easily.
- Prolonged incarceration also leads to a mental breakdown.
- Effect on the families of prisoners (social stigmatization):
- Due to Long absence of the main bread winner, the family is many a time forced into destitution.
- Family faces social stigmatization.
- All these circumstances propel the children towards delinquency and exploitation by others.
- All this leads to overcrowding of jail and increased jail expenditure.
- This is also against the principle of innocent till proven guilty.
- Reduce indiscriminate arrests:
- Law Commission in its 268th report recommended that Police should avoid needless arrests and magistrates should avoid mechanical remand orders.
- Implement Code of Criminal Procedure (Amendment) Bill 2006:
- Implement Code of Criminal Procedure (Amendment) Bill 2006 which was passed by parliament in 2008 and came into effect in 2010.
- It limits the powers of arrest by police. It also has a provision that in certain cases, the police can also issue a "notice of arrest" rather than arresting a person.
- Widen the Compoundable offences: The class of Compoundable offences under the IPC and other laws should be widened. Compoundable offences are those offences where, the complainant (one who has filed the case, i.e. the victim), enter into a compromise, and agrees to have the charges dropped against the accused.
- Send them to correctional home: Alternatives to imprisonment should be tried out and incorporated in the IPC. Under trials charged with petty crimes can be put in reformative homes instead of prison and asked to do community service till the time they are released on bail. Elementary education facilities must be granted to those under trials who are uneducated and illiterate.
- Bail bond:
- Inform about the bail: Law commission in its 268th report recommended that when a person is arrested without a warrant the arresting officer should inform the person about the available legal remedies including applying for bail.
- Speed up the bail process: Law commission in its 268th report recommended that Bail applications should be decided by subordinate courts within a week.
- Freeing without paying of surety: Law commission in its 268th report recommended that If the investigating officer founds that the under-trial is not in a position to pay surety then that person should be allowed bail without payment of surety.
- A portion of the funds transferred to the Panchayat for developmental work should be set aside to meet the bail amount for under trials belonging to the particular panchayat / block.
- Release of under-trials: Law Commission in its 268th report recommended that the bail provisions under Section 436A of the CrPC should be amended to ensure early release of under-trials.
- For offences with punishments up to seven years: Those who had completed one-third of the maximum sentence for offences up to seven years should be released.
- For offences with punishments more than seven years: Those who were awaiting trial for offences punishable with imprisonment of more than seven years should be let out on bail if they had completed half their sentence.
- Speed-up investigation: For ensuring that police speeds up the investigation of under-trails, following steps should be taken:
- Strict implementation of Section 167 of the CrPC: Section 167 Cr.P.C. lays down the maximum period within which the police investigation must be completed and a chargesheet filed before the court. This period is
- 90 days for offences punishable with death, life imprisonment or imprisonment for a term of not less than ten years, and
- 60 days for all other offences.
- Strict implementation of Provisions of Section 167 of the CrPC which sets a time limit for police investigation in case of accused under-trial prisoners.
- Separate law & order and investigative functions of police so that they can give detailed focus on investigation.
- Speed up trials:
- There should be an immediate increase in the number of judges and magistrates. It should be at least 107 judges per million of the Indian population.
- Automatic extension of remands has to stop which are given merely for the sake of the convenience of the authorities.
- Video conferencing between jails and courts should be encouraged
- Hold Special Courts in Jails for prisoners involved in petty offences.
- Scientific classification of prisoners: There should be a proper and scientific classification of prisoners to ensure that under trial prisoners are kept away from convicted prisoners.