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Why Are Almost 3 Lakh People In Jail Still Waiting For A Fair Trial?

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By Kunal Basu:

Diwali is the season of transition from darkness into light, from despair into hope and ultimate deliverance from injustice. A true ‘sadgati’ (liberation) in itself.

Bollywood has immortalised Diwali against a plethora of scenic settings. “Prem Qaidi” (1991) converted the excesses of jail life into a fictionalised love narrative. Even post-independence movies such as “Bandini (1963) and “Bandit Queen” (1994) have successfully translated the excesses of life in Indian jails into a romanticised telling of seeking justice post-prison release.

That’s only the theoretical part of it. In practicality, the truth is something entirely bitter, especially with reference to our criminal justice system.

Under Article 21 of our Constitution, the right to life includes the right to a speedy trial. However, this is an entirely laughable and illusory constitutional promise. As per official 2015 Government records, it is estimated that there are some 282,076 undertrial inmates languishing behind bars.

Bitter although it may sound, this is unfortunately the harsh truth. It appears that official records are well attuned towards Henry David Thoreau’s parting words, “Justice is sweet and musical, but injustice is harsh and discordant.” I wholly concur that every proved murderer, sexual or serial offender must be harshly sentenced by the courts, so that retributive justice is seen to prevail upon the family of the injured aggrieved party. But why should this judicial pronouncement be extended to convicts who have been incarcerated for a long time for minor offenses such as shoplifting, petty larceny and the like? Is this not legal and constitutional injustice of the highest accord?

There are men and women who are incarcerated in Tihar Jail for over 30 years. Many of these unfortunate prisoners have families and young children, whom they hope to be reconciled with one day. There are also many prisoners from poverty-struck backgrounds awaiting a fair trial. But owing to the lengthy procedural formalities of our criminal trial system, their hopes are dashed to the ground against the stark reality of eternal imprisonment, as judicial hearings are constantly deferred to contingent dates with no set guarantee of the same ever happening.

Being a lawyer, I can very well understand the trauma and grievance their families go through, when they are faced with societal stigma. These families did not deserve to be humiliated. Or treated as deviant castaways, just because they are connected to the accused offender. It is thus not a sudden shock or surprise that loss of job, constant badmouthing, and uncomfortable questions faced from society, all coupled with ultimate depression of jail life often leads many families and convicted offenders to commit suicide.

Despite the Supreme Court guidelines in ‘Hussainara Khatoon vs. State of Bihar’ (1979) AIR 1369 decreeing that every arrested person be provided free legal aid under Article 39A of our Constitution, no steps have been taken to implement the same. Likewise, many prisoners are put into solitary confinement for many years without any fellow convicts as companions. Although this is in strict violation of Supreme Court orders in ‘Sunil Batra vs. Delhi Administration’ (1978), yet the truth is that this practice is a harsh reality. It is not surprising that many prisoners choose to take their own lives, as they are devoid of basic amenities in jail life like convict companionship (except where they are hardened criminals) and a severe disconnect from their families.

Though Section 12(1)(g) of the Legal Services Authorities Act (1987) guarantees legal aid where a person is committed to judicial custody, its proper enforcement is yet to see the light of the day. As a consequent result, many arrested persons are incarcerated for many years, even before commencement of the actual trial itself.

As per Article 22 of our Constitution and Section 50 of Criminal Procedure Code(1973), every person has the right to have an advocate present at time of his arrest. Yet, there are many instances wherein the police themselves have violated this legal statutory provision. The recent instance at Kasna Jail this year, where a video captured Noida police exhibiting overt brutalities upon prisoners is evidence that the authorities are least concerned in enforcing the law and instead, extracting confessions from prisoners using third-degree methods in violation of Section 24 of the 1872 Indian Evidence Act. The NHRC report dated on August 5, 2016 seems to have made a clean sweep of this by releasing a report on the ‘mysterious’ death of the convict, rather than investigate the same and punish the guilty.

Under the 1894 Prisons Act, Section 15 mandates that a medical report be made regarding the death of a prisoner with particulars such as exact nature of illness. Likewise, Section 17 states that a duty is cast on the jailor to inform the Superintendent of Police the moment a prisoner dies. Sections 40 of the 2000 Delhi Prisons Act mandates that every prisoner is entitled to meet a legal practitioner. However, given the nature of surprise raids by the police without securing an arrest warrant from a Magistrate and police third-degree confessional techniques even today, it has been well-ensured that an accused be stripped of his legal right to counsel, rather than enforcing the same. What a travesty of law and justice!

Justice can only be done where the State acts more towards protecting the fundamental rights of the convicts by affording them efficient lawyers under Section 304A of the 1973 Criminal Procedure Code. Not using arbitrary confessional techniques and denying these convicts access to a lawyer. Or playing checkmate over the sanctioned strength of trial and upper-judiciary judges.

It is time we took a stand to brighten these prison inmates lives. We need to promote legal aid services where it is possible. Although bail cannot be really claimed as a matter of legal right as per ‘Rasiklal vs. Kishore Khanchand Wadhwani’ (2009) Civil. SLP No: 4008, it is time the State authorities turned a considerate eye towards granting bail to aged and old prisoners serving over 10 years in jail a reality. Likewise, if the judiciary strength was increased and criminal trial procedures followed, that would probably be a first towards marching the extra mile for securing legal and judicial justice.

As of now, that seems a far-fetched reality. But let’s try to make it one.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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