Bansi, who worked as a daily-wage labourer, was clueless about his rights or the legal recourse he could take when he was arrested in Delhi on charges of theft on January 3, 2016. It was only on the third day of imprisonment that fellow inmates told him that a ‘sarkari vakil’ or a government-empanelled lawyer could represent him free of cost. His family had during this time already tried searching for a lawyer they could afford to represent Bansi, but to no avail.
While prison, court, and legal services officials remained busy verifying the paperwork to ascertain whether Bansi already had a lawyer, he had already spent 14 days in prison. When he was produced in court, he tried to explain that he had applied for a ‘sarkari vakil’, but there again, Bansi was ignored and remanded again to judicial custody for a week. By the time the paralegal volunteer returned with the completed paperwork, Bansi had been shifted to another ward. When the volunteer finally told Bansi that a lawyer had been assigned to him, he had already spent 25 days in prison.
Bansi’s is not the only case where income, level of education, or marginalisation in society gets in the way of access to justice. “There’s this presumption that this person has done something wrong and that’s why he has landed up in jail. What people don’t realise is that a majority of the prison population comprises of undertrials – they haven’t been proven guilty, which is the basic dicta of the criminal justice law,” says Sugandha Shankar, a programme officer with the Prison Reform Program at Commonwealth Human Rights Initiative (CHRI).
Around 43 percent of prisoners in India who were yet to be proven guilty had spent over 6 months in jail in 2015. This often happens in contravention of law and laid-down procedure. Yet it continues to be a practice successive governments have done little to change.
The numbers speak for themselves. In 1995, the percentage of undertrials in Indian prisons was around 63 percent. In individual states, this percentage ranged from 50 percent to 95 percent. In 2015, it had risen to over 67 percent.
As citizens of this country, these statistics should concern us, because the Indian constitution states that no one ‘shall be deprived of his life or personal liberty except according to procedure established by law’. Says Venakatesh Nayak, coordinator of the Access to Information Programme at CHRI, “What they don’t recognise is that they would like the principle for themselves if they get on the wrong side of the law. But when it is somebody else on the wrong side of the law, then it is almost like a ‘chalta hai’ attitude.” As a signatory to the Sustainable Development Goals, India also made a commitment to both ‘promote’ and ‘ensure’ equal access to justice for all.
When it comes to prisons in India and undertrials lodged therein, Shankar says, this still remains an elusive dream.
If one closely analyses the statistics of these prisoners, a few more facts emerge. Marginalised communities, for instance, are overrepresented. Muslims, Scheduled Castes, and Scheduled Tribes make up for only 39.4 percent of India’s population according to the 2011 census. Yet they constituted 55 percent of undertrial prisoners in 2015.
“If a person wasn’t marginalised, it would mean that person would have the means through which to hire legal counsel, who would then put up a defence and ensure that the person is released on bail,” Nayak rues.
Literacy and education also seem to have a correlation with detention during trial. The National Crime Records Bureau reported in 2015 that 42.2 percent of undertrials in prison had education levels below class 10, while 28.5 percent were illiterate.
“It’s a kind of prejudice, not necessarily intentional but it is systemic, which works against these communities. And that’s the reason why you have a large number of these people languishing in prison,” Nayak told YKA.
The need of the hour then is to not just take steps to reform the country’s criminal justice system, but to also make these institutions more effective, accountable and transparent at all levels.
“It is extremely unfortunate that many states do have dedicated ministries or departments for prisons. So, the political executive is aware of these issues but there is a lack of resolute action in tackling these problems. And that is why there is a serious problem which continues,” says Nayak.
The Prisons Act of 1894, for example, requires each state to frame rules for ‘appointment and guidance of visitors of prisons’. And even though most states in India have framed these rules, which have certain provisions for ensuring fundamental rights within prisons, when it comes to implementation of these rules, we hit a wall. This is despite directives by the Supreme Court and High Courts, advisories by the Ministry of Home Affairs, and recommendations of committees formed by the government.
For example, only 4 states in the country had constituted a Board of Visitors in their jails until 2014, according to the RTI replies received by Commonwealth Human Rights Initiative (CHRI). According to rules, it is the responsibility of the Board of Visitors, comprising of both official and non-official members, to find administrative solutions to ensure that the rights are ensured inside prisons. 15 states and union territories had no boards at all. And where the Boards existed, they didn’t conduct meetings with the prescribed frequency except in Meghalaya and Goa.
The non-official visitors in these boards are important according to Nayak. “Once civilian oversight is restored, then they would be able to give real-time feedback, and then it would be entirely up to the political executive and up to the prison authorities to act on those recommendations,” he told YKA. “The government needs to advertise the vacancies for the non-official visiting group. And then civil society organisations can identify people who are qualified who can then go and do the prison monitoring carefully and give feedback,” he added.
Supreme Court orders also mandate constitution of a specific Under Trial Review Committee (UTRC) in each district. The committees are supposed to prevent prolonged incarceration of undertrials by ensuring that relevant provisions of the law are implemented.
“This is a wonderful coordination committee, which helps. If they meet regularly, if they follow the mandate completely, we feel that a lot of things can change on ground,” Shankar says. However, another set of RTIs filed by CHRI showed that these meetings were held in only a small percentage of districts from the time of their formation till November 4, 2015. Given that the mandate of these committees is to get undertrials out of prison in accordance with law, a functioning UTRC could address a lot of problems that have been identified with regard to undertrials in prison.
The road to ensuring justice for all is clearly not easy. The poor, marginalised, and vulnerable communities already live an unequal and unjust life. Denying these communities access to justice is almost equivalent to criminalising just because of their identity. This is not sustainable development. If India has to fulfil the promises it made to the world by 2030, the government must strengthen institutions of democracy to ensure that the law doesn’t discriminate between citizens and ensures equal access to justice for all.