By Nusrat Khan
Two significant events relevant to the issue of undertrials have occurred in the past few weeks. The first was a Supreme Court order drawing attention to the plight of 2.78 lakh undertrials in Indian jails. The second was the conviction of and subsequent bail for Salman Khan in a hit and run case.
As an undertrial, Khan spent about a week in judicial custody over 13 years. As a convict, he has managed to avoid jail so far, securing two bail orders in three days. Contrast that to the lives of nearly three lakh undertrials, whose guilt, unlike Khan’s, remains unestablished. But they are behind bars, fighting poverty and disease, facing social stigma and loss of employment. Some may have completed more than the maximum sentence they would face if convicted. Last year, Amnesty International India worked on the case of Shankar (name changed), charged with stealing a motorbike, an offence with a maximum punishment of three years. Shankar spent two years, nine months as an undertrial in Mysore Central Prison, even though he was entitled to release on bail or personal bond after a year and a half, under Section 436A of the CrPC, simply because he didn’t have any legal advice.
According to NCRB data, as of December 2013, over 67 per cent of the inmates of Indian jails were undertrials. Over 62 per cent of undertrials had been detained for more than three months. Over 23 per cent had spent between one and five years in judicial custody. Access to timely, quality legal aid, guaranteed by the Constitution and international law, could have produced the relief granted to Khan. Poor awareness of rights and flawed prison record management also contribute to excessive pre-trial detention. These factors were addressed by the SC in its April 24 order. Cognisant of the “high percentage and number” of undertrials in Indian jails, it sought to identify and set free those eligible for release. To this effect, it issued some directions, three of which are significant.
First, the SC directed the home ministry to review the “Prison Management System” in Tihar jail. This is the first time the court has directed a review of Tihar’s software, lauded by government authorities as the model solution to the challenge of realising undertrials’ rights. This order will have significant consequences as many states have adopted the Tihar software, designed by the National Informatics Centre (NIC). Over the last four months, Amnesty International India visited four jails in Karnataka to review the implementation of this software. Three problems stood out. There were flaws in design. Currently, the NIC software appears to generate three different numbers for each new inmate. This leads to confusion and inaccuracies in calculating an undertrial’s total period of detention.
There should be a single identification number for each undertrial. The authorities also depend on jail staff to manually key in prisoner data, including the charges and maximum sentences for offences. It must be replaced by a system that automatically determines when an undertrial is eligible for release and issues an alert. Finally, jail staff currently operating the software are not adequately trained, leading to errors in case documentation.
Second, the SC clarifies how Section 436A must be interpreted. It states that when an undertrial is charged with multiple offences, she is eligible for release under this section “after half the sentence of the lesser offence is completed”. Currently, the “greater” offence is considered, if at all. Given that undertrials are typically charged with multiple offences, the court’s progressive reading of the law is likely to have a positive impact.
Finally, the court expressed shock at the number of undertrials “who are unable to furnish bail and are still in custody for that reason”. Directing state legal service authorities to act immediately on these cases, the court held that “poverty cannot be a ground for incarcerating a person”. Both the speedy bail granted to Salman Khan and the SC order highlight the inequities in our criminal justice system. Until this is recognised and challenged, justice and equality will elude us.
(The writer is a researcher with Amnesty International India)
(Correction: The article earlier erroneously attributed the author as Durga Nandini in the print version. The correction has been made online.)