Undertrial prisoners in India: Shouldn’t the justice system instead be on trial?
Jayesh Singh and Aashish Gupta

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

― Nelson Mandela

The night of June 4 was just a regular evening for most of us. Finishing the day’s work, people had gone asleep at their usual hours. I was up till late preparing for my upcoming exams. Around mid-night, I heard the rattling sound of a jeep drawing close. Brushing aside the curtain, I leaned over the window and saw a police jeep pulling by. The monotony of the day quickly evaporated into thin air. The police officers climbed up the stairs and knocked on the adjacent apartment. By now, everyone was awake. Our neighbour, Lata aunty, answered the door and the police asked for her son, Nikhil. Scared of the unexpected visitors and with tears rolling down her wrinkled eyes, she ran hurriedly to her son. Following her, the officers barged in and took Nikhil into custody for posting some allegedly seditious content on Facebook. Lata aunty wept incessantly and prayed the police to leave her son. The jeep drove off.

After spending over two weeks in police custody and a month later, Nikhil today is an undertrial prisoner and languishes in a local jail waiting to be released on bail. He stays in a small cramped up cell along with three other inmates and has transformed from a youthful young man to a skinny and depressed stoic who is losing against the justice system.

Theoretically called a correctional place, the jail had succeeded in dehumanizing him with its stinking toilets, spoiled food and lack of medical facilities among other hardships cast on the inmates. Back at home, Lata aunty’s heart disease had exacerbated. She wished to be alongside her only son. Having his bail application dismissed multiple times, Nikhil fears becoming a part of the jail’s rooster coop where the undertrial prisoners lose all hope of freedom.

Same as Nikhil, there are lakhs of undertrial prisoners languishing deplorably in the jails today. Specifically, around 70% of India’s prisoner-population consists of the undertrials. The story of Father Stan Swamy and others arrested after the Bhima Koregaon incident speaks volumes of the deplorable state of India’s justice system. Arrested in October 2020, Father Swamy was an undertrial prisoner suffering from Parkinson’s disease who died awaiting his final bail hearing. The experiences of Nikhil and Father Swamy sends shivers down my spine and I am forced to think how the law enforcement agencies themselves fail to grant the legal rights available to undertrial prisoners in India.

The foundational principle in a criminal justice system is that of ‘innocent until proven guilty’. An undertrial does not lose his rights merely by being an undertrial. He is to be afforded the same treatment in the eyes of law as any other natural person. Even when a person is convicted of a crime, he/she is not reduced to a position where his/her legal rights can be violated at the jail administration’s whims. There is a bundle of rights which an undertrial prisoner always possesses. Some of these rights are:

  1. Right to receive interim bail on serious illness of oneself or close family members:
    Under the Indian law, bail is recognized as the norm and jail as an exception. However, the conditions of bail depend mainly on the offence for which the accused has been convicted or charged with. Therefore, a bail hearing entails an analysis of the gravity of charge, severity of punishment, and danger posed by the accused to society, among other factors. Clearly, the discretionary elements involved in granting a bail on medical grounds are many. However, the ground rule is that inmates are entitled to bail on medical grounds subject to fulfilment of certain conditions. One of the most important part of a human’s life is his family and if one of the family members is suffering from a serious illness, his life will also be affected severely Courts have recognized that since an undertrial is a human being, he will be affected significantly when one of his family members and especially someone, like his mother, is seriously ill. It is the duty of the court to understand the feelings of an undertrial and grant him bail to meet his mother. Under Article 21, emotional connect and relation between the close family members is recognised as one of the most important facets of human life.                                                                                                                               
  2. Right against inhumane form of investigation afforded under right to life:                                Nobody can be subjected to any questionable investigative technique in any circumstances, even when it is in the context of an investigation in a serious criminal case. Proceeding with such acts would result in an unwarranted intrusion into an individual’s right to life under Article 21 of the Constitution. Therefore, it goes without saying that an undertrial prisoner can in no circumstance be subjected to torture. The prohibition against violation of the right to life applies to all limbs and faculties necessary for enjoyment of life. The clause also bans mutilating the body by amputating an arm or limb, blinding an eye, or destroying any other organ of the body. The right to life extends beyond a human being’s physical survival or animal existence.                                                               
  3. Right against solitary confinement:                                                                                                  In the case of Sunil Batra v. Delhi Administration, the Supreme Court held that the solitary confinement should be imposed only in rare circumstances, such as when the prisoner is so aggressive or dangerous that segregation becomes an absolute necessity. Even in this case, the solitary confinement cannot be permanent or for a prolonged period and the inmate shall be released from it after a proper assessment of the situation.                                                                             
  4. Right to receive free legal aid:                                                                                                            Everyone, no matter whether he is guilty or not, have the right to represent himself in the court. Even if he is not financially capable of hiring a counsel, the State is obligated to provide him free legal aid. One cannot be called guilty unless he has been given a chance to justify his stand and provide justifications for his actions. No undertrial can be denied their right of legal aid.           

Apart from this, there are various other rights which are present for the protection of prisoners such as:

⮚     Right to speedy trial

⮚     Right to education

⮚     Right to receive magazines

⮚     Right to live with human dignity

Indian law makers have taken cognizance of this issue and passed some laws which protect the rights of prisoners. Although, these laws are inadequate to provide protection to prisoners but still hold importance. Following are the legal provisions:

  1. Rights under the Prisons Act, 1894                                                                                                This is the first legislation passed in India with respect to rights of prisoners. It contains following provisions :                                                                                                                                           a) Section 4 talks about Accommodation & Sanitary Conditions of prisoners in the prison.                   b) Section 7 talks about providing safe custody and shelter to prisoners in case there are excess           number of prisoners in a prison and it is not possible to shift them to some other prison at                 present.                                                                                                                                             c) Sec 24(2) talks about examination of prisoners by qualified medical officer.                                 d) Section 27 talks about separation of prisoners, containing female and male prisoners, civil and         criminal prisoners and convicted and under trial prisoners.                                                             e) Sections 31 and 35 of the Act talks about treatment of under trials, parole and temporary release       of prisoners.                                                                                                                                                                             
  2. Rights under the Transfer of Prisons Act, 1950                                                                              This statute was passed to minimize prison congestion. The convicts are moved between States for vocational training and to alleviate overcrowding. This Act gives several rights to the prisoners and aims at the protection of prisoners against any kind of brutalities. It talks about providing vocational training to prisoners in order to make them skilled.

Even though these rights and laws are enshrined in Indian legal framework, the condition of prisoners in Indian prisons is still pitiful. With each passing year, the cases of brutality with prisoners and their ill-treatment keeps on increasing. The law makers have a duty to remove the loopholes in the existing statutes and bring dynamic laws to limit the excessive power of investigation agencies and police authorities. At the end, an undertrial prisoner is also a human being and no one has the right to take away his basic rights away.

If you or anyone around you is facing an infringement of your legal rights, then you may reach out to us for legal assistance. 

Undertrial prisoners in India: Shouldn’t the justice system instead be on trial?
Jayesh Singh and Aashish Gupta

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