Undertrial Prisoners in India: Shouldn’t the justice system instead be on trial? | Written by Jayesh Singh and Aashish Gupta | August 6, 2021

“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 June4 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 dehumanising 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 recognised 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 recognised 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.

 1. 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. 

2. 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.

3. 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:

  • 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.

  • 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.

Domestic Violence – The Shadow Pandemic | Written by Lavanya Agarwal and Pradyumn Bisht | July 19, 2021

A week-long lockdown had been announced yesterday.
Again, Sunita sighed as she struggled to get out of her bed and start her daily routine of household chores. She didn’t like such long lockdowns which trapped her in her own house. Damn this pandemic! She exclaimed. It closed her ways to escape during the day from the more real and nearer threat than an invisible virus.
She went to the corner of the room to the small and tarnished mirror on the wall, to check on her bruises from last night. They would last longer this time. She glanced at her soundly sleeping husband, Ramesh, across the room and sighed again. She already missed going to work. Shaking off her dread for the coming week, she got busy with the morning chores…

Elsewhere, the morning alarm went off. Neha peeked out of her comfortable blankets and groaned. She had to wake her kids up for their so-called online classes. She groggily made her way to them while thinking about her to-do list. She had a lot of chores to do as her maid, Sunita, won’t be able to come due to the lockdown. She woke up the kids and, “Dad will stay at home for a week now. Yay!” they squealed excitedly. This brought Neha to her senses. She hurried off to make breakfast for the family, but first, she had to hide the alcohol. It was one thing that could ruin the whole week for them. Then she started to think of the activities that could keep her husband, Shekhar, busy for the whole week at home. Anything to keep him away from the thought of alcohol. She made Shekhar’s favourite breakfast and started off the week with an optimistic smile…
It had been three days now, and Sunita was too tired to even stand. Her whole body screamed in pain, but she didn’t have a choice but to bear with Ramesh. She trudged her way to the kitchen to the rice container to stash the last few notes of two thousand rupees into it. She knew that if Ramesh came to know about this hiding spot for money, she will have to face his renewed wrath and a fresh round of beatings. She was the sole earner in this house and she had to save the money from Ramesh’s extravagant habits, to make their ends meet. Suddenly, her phone rang.
“Hello, Sunita. How are you?” Neha said from the other side.
Suddenly, Sunita wanted to cry and vent out all her pain to Neha didi. Even though Sunita worked at Neha’s house, she considered her a generous friend. She enjoyed spending her time at their house, with Neha’s kids.
Sunita controlled her emotion filled voice and said, “I am good, didi. How are you? How are the kids?”
Neha sighed and said, “They are good and safe.” Then she lightly asked, “By the way, I can’t find the balm and painkillers. Where did you put them?”
Both the ladies went quiet for a moment as Sunita grasped the real meaning behind those words. Shekhar babu must have found his alcohol last night and abused Neha while drunk. When compared to Ramesh, Sunita felt that at least Shekhar babu was decent enough to feel guilty about it, though that didn’t change anything.
Sunita quietly said, “I kept them in the back of your almirah’s drawer.”
Neha curtly said, “Okay. Take care.” and hung the phone.
Being a domestic violence victim herself, Sunita was acutely aware about her surroundings. She had known that Neha didi was also a victim when she had noticed the bruises and red marks on her face one day. But Neha didi hid her pain well for the sake of her kids. Neha didi didn’t earn but she wanted to be a nice mother to those kids and provide them with all the facilities and a complete family with Shekhar babu.

After applying the balm and taking some painkillers, Neha started to think about Sunita. She knew Sunita was also a victim and always stood in silent solidarity whenever Shekhar had had one of his drunkard episodes. She chuckled at the irony of their situations.Sunita was the earning member for which her husband, Ramesh, beat her out of his frustration of unemployment and inferiority complex. On the other hand, Shekhar was the earning member in this house and Neha was the homemaker. He started beating her around the time when they went through financial crisis and he resorted to alcohol. Then in his drunken state, he would vent out all his frustration and work stress on Neha in the form of abuse, all the while relishing his superiority complex and control over his wife. Neha could have left him there and then, but Shekhar was good with apologizing and looking guilty. She always forgave him and hoped for a better future. By the time it became a habit, to get drunk and beat his wife, they already had children. Now, Neha chose to stay with Shekhar because she wanted to give her children a good future. She was determined to end this cycle of abuse, but not at the sake of her children. She knew better now, that it is futile to expect better from her husband. After all, there can never be a good reason to abuse your spouse.
She thought Sunita was lucky to not have children. Sunita didn’t have them because she didn’t want to trap herself with the responsibility of a mother but have the option to leave Ramesh whenever she wanted. But she was just fooling herself, because if she could have left Ramesh, she would have, a long time ago.
No, Sunita and Neha both, in spite of the class differences, didn’t have the luxury of an open-minded society who wouldn’t abandon and shame them for leaving their husbands. Sunita and Neha came from very different worlds and societies and both knew it was foolish and wrong to call this tormenting life their fate. They were trapped by the shackles of societal expectations and pressures about how a woman should compromise and adjust with her husband. The legal provisions for them were left to shame and at the mercy of the advocates of an unjust society and customs. Nobody deserved this kind of mistreatment. Nevertheless, they plastered a smile on their face, took a deep breath and went about their life like always.

In India, more than 30% of women have been subjected to domestic violence at some point in their lives, per the National Family Health Survey (NFHS) data. Yet, nearly 75% of those who reported being subjected to domestic violence did not seek help from anyone. For those who do, by confiding in close family members, the crime often gets brushed off as a private or family matter that doesn’t require outside, legal intervention.

The COVID-19 period has brought the offence of domestic violence to the forefront and aggravated it to an alarming rate as the victims have been forced to live together with their abusers coupled with poverty and unemployment during the lockdowns. During the initial phases of the lockdown, Indian women filed more domestic violence complaints than recorded in a similar period in the last 10 years. But even this sudden spike is only the tip of the iceberg as most victims do not seek help in India. Even though the full scale of the issue hasn’t yet been grasped, it is being termed as the “Shadow Pandemic” or “crisis within crisis”, not just in India, but all over the world. In India, there are certain provisions those seek to protect the victims and punish the abusers under the law.
The Protection of Woman from Domestic Violence Act, 2005
Domestic violence is defined by Section 3 of the Act as “any act”, omission or commission or conduct of the respondent shall constitute domestic violence in case it:
harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (1) or clause (2); or
Otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Furthermore, Domestic Violence was added as a Criminal Offense under the section 498A of the Indian Penal Code in 1983. Under this section harassment for Dowry by the family members of the husband or by husband is recognized as a crime.It particularly covers the cruelty faced by wedded ladies at the hands of their spouses or their husbands’ families. Under the Law, the acts of cruelty include, but are not limited to, the physical abuse; psychological torture by threatening her or her loved ones (such as children); not giving the woman food; locking her in or out of the house as punishment; and sexual abuse against the woman’s will. It also includes any and all intentional behaviours against a woman which force the women to attempt suicide or risk to life or grave injury or risk to limb or overall health. Here, health incorporates the physical and mental health of the women. The convicted abusers are charged with imprisonment up to 3 years or fine or both.
Domestic violence, also called intimate partner violence, is a type of violence committed by someone in the victim’s domestic circle. This incorporates partners & ex-partners, family members, close relatives and family friends.Unlike Sunita and Neha above, the victims, be it a man or a woman, need to speak against domestic violence. Only taking a stand against it will end the cycle of abuse. Moreover, the legal remedies and provisions won’t be put to use unless the society supports the victims and takes a stand against it.
A first, legal step would be to approach the police for help or to seek the help of a Protection Officer, appointed by the government to assist victims of domestic violence. It may be useful to consult a lawyer and/or have the support of an NGO or a woman’s rights organization in such matters.The National Commission for Women has also launched a WhatsApp number 7217735372 too for victims of domestic abuse.

Respect Old Citizens Written by- Tanvi Kaushal And Pooja Rajawat Published on- March 22,2021

Gauri- “Did you keep my arthritis medicine?”
Manav- “Yes, I did. I also kept the heating pad for your back pain”
Gauri- “Remember the kids told us to not take anything essential from the house because they want to rent our house as a fully-furnished room, so be careful and if you have taken anything essential, keep it back or you know…..”
Manav- “Yes, I know, I won’t take anything from the home I built from my own two hands”
They both continue packing.
Manav and Gauri got married 40 years ago and raised three young and bright kids. They were a normal middle-class family for most of their lives. Manav ran a small construction business and Gauri was a teacher in the town’s elementary school. They never let their kids feel like they couldn’t follow their dreams because of financial troubles; they did whatever they could to support them. Each one of them went to a renowned university, got married and had a family of their own.
The couple was very diligent in putting away a part of their incomes as savings for a secure and independent retirement. They did not want to burden anyone. They seemed like the perfect little family, but then the family was struck by series of disasters, all rolling in, one by one. The elder son had a gambling problem and he gambled away all his money, including his house. The younger son’s firm filed for bankruptcy and he lost his job. The daughter’s practise was hit by a law suit which caused immense financial loss to her. Like the ideal parents, Manav and Gauri offered to help each one of their kids with money, they knew this will drain their savings, but they did it anyway. They also took a mortgage on their house and didn’t tell anyone.
Slowly all the kids started getting back on their feet and got busy with their lives again, but in the process, they forgot about the parents who helped them..
The couple started to have financial troubles of their own; they could barely make the ends meet. They could not make mortgage payments and the bank had threatened to take their house way on more than one occasion. Manav had a lot of pride to ask his kids for money, but this problem was not going away, he had retired and their savings were gone, so after a lot of deliberation, they arrived at a conclusion that they would ask their kids for some help, but to their dismay, all three kids refused to help them, giving some vague reason as to why they couldn’t help.
Manav and Gauri were devastated. They raised their children with values and morals. They helped them out in every way they could. They knew the kids had means to help them but they were just reluctant to do so. There was no light at the end of this tunnel.
The bank threatened to take away the house in fifteen days if the mortgage payment wasn’t met. Manav was too scared to ask for help again because he feared if they refused again, it would crush his heart. But Gauri secretly asked the younger son to just help with the mortgage payment so that they can keep a roof over their head, she cried over the phone talking to her son. He said he would figure something out and they should not worry. His solution was to send Manav and Gauri to an old age home and rent the house through which the payment of mortgage could be made.
The door opened and Manav and Gauri came out with a suitcase in their hands. With a heavy heart, they looked at their house for the last time and sat in the cab. Manav told the address to the driver and asked: “Could you drive through downtown?” The driver told them that it was not the shortest way. “I know, but there is no rush, as we are on our way to a shelter home. We have no family left”. The couple had tears in their eyes.
When they reached the old age home, they were greeted by several old men and women. Both of them were seated in the garden surrounded by others.
One of them asked, “What brought both of you here? Did you not have any children?”
“We have three children but probably they forgot that they have parents.” said Manav with his throat choked.
While Manav wailed inconsolably, Gauri went on talking, in a voice that was cold and piercing like a shrapnel, “I gave birth to the three and see what they did? They forced us out of own home. They are all well-settled financially. They have got everything for themselves, but nothing for us. They have forgotten how we spent our entire life for them.”
“I can understand the pain you both are going through. All of us here have experienced it at some time or the other which brought us here.” said an old woman sitting next to Gauri.
Today the definition of family is transforming from all-inclusive to “me, my wife and my kids. Old parents become a burden for them.” said another old man who listened to their conversation with a stone-cold face.
“But that does not mean that we cannot do anything.” came another voice. “We are weak but not completely helpless. We have recourse to the law.”
“Now at this age, you want these weak bones to go to the courts and die even before the case is settled. With no money even for food, from where we will afford the hefty fees of the lawyers.” said Manav in a disapproving tone.
“Things aren’t the same anymore. We are no longer supposed to go to the courts in order to get what is our right. We just need to take the first step.” said an old woman.
“Provisions have been made in the Constitution of India to preserve the rights of those aged above 60. Since these articles are part of Chapter IV of the constitution which corresponds to Directive Principles, they cannot be enforced by a court of law as stated in Article 37, however, they are the basis upon which any legislation is drafted.” she explained.
Article 41 of the Constitution secures the right of senior citizens to employment, education and public assistance. Meanwhile, Article 46 asserts that the educational and economic rights of the elderly must be protected by the state.
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 Act was enacted to ensure parents and senior citizens are given basic amenities. The act under Section 2(b), defines maintenance as including provision for food, clothing, residence, medical attendance, and treatment. Unlike claiming for maintenance under Section 125 of CrPC wherein the senior citizen will have to approach the Court bearing expenses to file and litigate suit and spend a lot of time, under MWPSC Act, the process was made simple. Parents and senior citizens may claim for maintenance only under one of these statutes. The Act makes it mandatory for children or legal heirs to provide the basic amenities to their parents or grandparents (or senior citizens). Maintenance Tribunals have been established to ensure the implementation of the law.
The Tribunal may, during the pendency of the proceeding order children or relative to make a monthly allowance for the interim maintenance of such senior citizen including parent and to pay the same to such senior citizens including parent as the Tribunal may from time to time direct. Monthly maintenance of up to Rs. 10,000 can be awarded and the children or relative should deposit this within 30 days from the day of the order by the tribunal. Senior citizens can also revoke transfer of property in case of negligence by relatives. The failure to comply with the maintenance orders issued by the Tribunal can also attract imprisonment.
Section 17 of the Act states that no party to a proceeding should be represented by a lawyer while parents or senior citizens may avail the services of the Maintenance Officer appointed by the State Government.
“There are also various provisions to facilitate us in or day-to-day lives apart from the maintenance act.” came another voice.
As per rights guaranteed under the National Policy for Older Persons, 1999, all Indian citizens aged above 60 are entitled to a 30 per cent concession in ticket prices while travelling with the Indian Railways. The concession is 50 per cent for women aged above 60 along with the provision for separate counters and other services including berth requests.
While different religions have varying laws in place to protect the interests of senior citizens, some are very particular such as the statutory provision for maintenance of parents under Hindu personal law contained in Section 20 of the Hindu Adoption and Maintenance Act, 1956. Similar laws are found in Muslim laws, Christian laws, and even Parsi laws.
Section 88-B, 88-D, and 88-DDB of the Income Tax Act of India allow senior citizens to claim a discount in tax. The elderly is also entitled to get higher interest on tax saving plans apart from having a wide variety of LIC policies and post office saving schemes to choose from.
“But how can I go into a legal battle with my own children. Even though they have forgotten to care about us, we can’t do the same to them.” said Gauri at last after listening to the people surrounding her. “Even I felt that I could never go against my children but your necessities force you to take legal recourse and make them realise their duties.” Said an old man.
“Manav and Gauri, you should file an application. We are all there to support you.” came distinct voices.
With a deep sigh said Manav, “I wish they would have understood it on their own that we are not a burden but their responsibility. We will get the money for maintenance but I hope we could also get the love and respect from our children. We could get the warmth of our home and live together as one family.”