By Sanjay Raman Sinha
In January this year, a judge in a Mumbai sessions court faced an unusual request from a woman undertrial—permission to undergo in-vitro fertilisation. She was a former prison guard who had been in jail for six years in connection with the custodial death of an inmate in Byculla jail and was facing family pressure to bear a child.
The Court denied the request and the judge in the order stated: “If such type of permission will be granted, then there will be other applications also about the visit to doctor and for escorts and other reliefs. It will definitely burden the prosecution.”
This case poignantly captures the plight of undertrials in India. In this particular case, the conjugal rights of prisoners or undertrials was under question. Prisoners as citizens and human beings too have the right for conjugal fulfillment. Conjugal visits were given permission by the Punjab government last year. However, the state held that it was more a matter of privilege than right.
In Sunil Batra vs Delhi Administration (1979, SC), Justice VR Krishna Iyer observed that “visit to prisoners by family and friends are solace in isolation; and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity”.
Interestingly, in Jasvir Singh vs State of Punjab, a couple convicted of murder and on death row put a petition to enforce their right to procreate. The question before the court was whether the right to conjugality and procreation is a part of the right to life. The High Court held, subject to restrictions, that the right to conjugality is a right of prisoners under Article 21. However, in Meharaj vs State case of 2022, the Madras High Court observed that prisoners can avail leave for conjugal visits if there are “extraordinary reasons” such as “infertility treatments”.
Undertrials in India, who constitute a whopping 77% of the prison population, are anyway denied many rights. This is despite the fact that they are in jail awaiting verdict in their trial or awaiting completion of investigation or are too poor to secure bail.
Jurisprudence demands that every person is presumed innocent until proven guilty. This principle is recognised under the Universal Declaration of Human Rights, 1948. But undertrial incarceration violates this cardinal principle. Oftentimes, undertrials undergo incarceration longer than what their crime demands.
The International Covenant on Civil and Political Rights (ICCPR) enjoins nations to enact laws to compensate people for miscarriage of justice or undue incarceration. India ratified ICCPR in 1968, but is yet to comply with its obligations and enact a law that awards compensation to victims of miscarriage of justice. There is no state policy for awarding compensation. The courts have, off and on, declared compensation in serious cases of miscarriage of justice.
Article 21 of the Constitution says that no person shall be deprived of his life and personal liberty except in accordance with the procedure established by law. Remedial measures for wrongful incarceration have been established by many verdicts. State liability as per Article 21 is also underlined in many cases.
In Delhi High Court in Babloo Chauhan @ Dabloo vs State Government of NCT, Justice S Muralidhar directed the Law Commission to undertake a comprehensive examination of wrongful prosecution and suggest a mechanism for compensation and rehabilitation of such victims.
The 1983 Rudul Shah vs State of Bihar case was a landmark one wherein the Supreme Court held that “one of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation”. Due to this verdict, the Supreme Court paid compensation in a number of petitions.
The problems of undertrials are manifold. They encompass not only judicial miscarriage, but mental and physical trauma. Another surprising fact is that more than 65% of undertrials are from the Scheduled Castes, Scheduled Tribes and Other Backward Castes. This implies failure of the social justice system to reach the most deprived of the masses. What compounds the problem is the lack of awareness among them about their rights—65% of undertrials are either illiterate or semi-literate, and therefore, unaware of the rights conferred to them under the Constitution and legal obligations of the State.
Under Article 22 of the Constitution, undertrials have the right to consult and be defended by a legal practitioner of their choice. In State of Madhya Pradesh vs Shobharam, this was underlined. Legal aid is a basic component of personal liberty held sacrosanct in the Constitution. The Supreme Court has described this right as the “heart of fundamental rights”. However, due to ignorance of the free legal aid system or for want of advocates, poor undertrials do not file bail applications.
In fact, in July 2016, in the first-ever conclave of the India Legal Research Foundation held in Ranchi, the then governor of Jharkhand Droupadi Murmu had made an impassioned plea to improve access to justice to the underprivileged. She had said: “The Supreme Court has emphasized, while interpreting Article 21 in the light of Article 39A, that legal assistance to the accused who is arrested with jeopardy of his life or personal liberty, is a constitutional imperative mandate not only by Article 39A but also by Articles 14 and 21. In the absence of legal assistance, injustice may result and every act of injustice corrodes the foundations of democracy.”
Murmu had said that when she visited jails, she always found that it was full of poor people who had no knowledge of the law. It is therefore important that law education should be included in the academic curriculum to make justice accessible to all.
Plus, there is low judge-to-case ratio complicating the case of undertrials. The disposal rate of cases is low and arrests in criminal cases high. Thus jails are overburdened and arrests have not abated. In 2021, there were seven lakh more arrests than 2020. Pendency of criminal matters adds to the problem. There is a huge backlog of criminal matters, which have shot up from 1.35 crore in 2019 to 1.88 crore in 2022. One prime reason for prolonged incarceration is the difficulty in getting bail.
On February 1, 2021, the Supreme Court held in Union Of India vs K.A. Najeeb case: “Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, courts would ordinarily be obligated to enlarge them on bail.”
The case herein dealt with UAPA provisions which make bail difficult. However, the Supreme Court while accepting the bar under Section 43D(5) of UAPA against grant of bail made it clear that the provision does not negate the jurisdiction of constitutional courts to grant bail on grounds of violation of fundamental rights.
The bench of Justices NV Ramana, Surya Kant and Aniruddha Bose held: “Indeed, both the restrictions under a statue as well as the powers exercisable under Constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail, but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.”
In Hussainara Khatoon and Ors. vs Home Secretary, State of Bihar, it was held that indigent undertrials can be released on personal bond without any surety when there is no risk of absconding. Also, Section 436 of the CrPC facilitates bail and states that undertrials have the right to be released on bail or personal bond with/without sureties, if they have undergone detention for half or entire of the maximum period of imprisonment for that offence.
Often, the machinations or shortcomings of the police play havoc too. If there is non-availability of police personnel to escort the accused to the court, it results in automatic extension of custody.
In Uday Mohanlal Acharya vs State of Maharashtra, the court held that undertrials have the right under Section 167 of the CrPC to be released on default bail (even for non-bailable offences) when their judicial custody exceeds 90 to 60 days, but no chargesheet is filed by the police.
The case of undertrials is a complex one. The socio-legal web that they are caught in often demoralises them. Over the years through verdicts, a jurisprudence has developed, but a concrete legal policy is yet to evolve which will cater to the psychological-physiological-social aspects of undertrials.