COMMENTARY
in a hut with her daughter and teenage
Condition of Undertrials in India
Problems and Solutions
Murali Karnam, TRIJEEB NANDA
A large number of the poor,
the Dalits and people from
the minority communities are
languishing in jail as undertrials
because of a property-based
bail system and a poor legal aid
mechanism. This article suggests
ways in which both these tools
could be strengthened for speedy
dispensation of justice.
Murali Karnam (murali.karnam@gmail.com)
teaches at the Tata Institute of Social Sciences,
Mumbai; Trijeeb Nanda is a Tata Trust Fellow,
TISS, based in Odisha.
14
son. Both the women work as domestic
help to meet their ends. They primarily
survive on the ration from the public dis-
tribution system. Since their imprison-
ment, the teenage son had to drop out of
school. He started working in various
shops for food and shelter. The vulnera-
O
nce again the Supreme Court bility of the adolescent has also has
has turned its attention on the pushed him towards consuming drugs.
plight of poor prisoners and Exactly after six months, the court ac-
undertrials. On 5 February 2016, its Social quitted the mother and daughter from
Justice Bench directed the government all criminal charges. Going by the nor-
to execute a series of reforms to amelio- mal standards of time taken for comple-
rate the condition of prisons. The state tion of trial, this was swift. The repeated
should engage competent legal aid law- applications from a conscious lawyer for
yers, consider the release of undertrials speedy trial nudged the court towards
under Sections 436 and 436A of the disposing off this case swiftly.
criminal procedure code and develop Shantis case is not exceptional. Accor-
information management systems to ding to the National Crime Records
address overcrowding in Indian prisons, Bureau (NCRB) data of 2014, the percent-
especially in Maharashtra, Uttar Pradesh age of undertrial prisoners (UTP) has
and Dadra and Nagar Haveli, the Supreme been consistently increasing over the
Court said. The legal aid for poor should years (see Figure). The guilt of about
not become poor legal aid, the bench three-fourths of the prison population is
thundered. It condemned, in unequi- yet to be proved and the overall disposal
vocal terms, the anti-poor property-based of cases and conviction rate is also very
bail system.1 It was very categorical poor. It means majority of UTPs are
when it said: It is against the spirit of found innocent like Sahu and acquitted
law to incarcerate people only because at the end of trial. There is no doubt that
of their poverty. It ordered the legal ser- poor, Dalit and tribal backgrounds have
vices authority to take up cases of pris- a disproportionate representation in pri-
oners who are unable to furnish bail and son and also undertrials, without the
are still in custody. Figure: Percentage of UTPs in India
The following is 68
the common scenar- 67
io of most under- 66
trials. Shanti Sahu 65
and her 18-year-old 64
daughter were ar- 63
2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
rested on charges Source: National Crime Records Bureau (200414).
of causing grievous
hurt and criminal intimidation to their ability to furnish the bail amount (see
neighbours on 13 June 2015.2 They were Tables 1 and 2, p 15).
sent to jail not because their bail applica-
tion was rejected, but because they were Liberty Based on Property
unable to engage an advocate. They The court sets an accused free on bail
secured bail when their employer arranged when it believes that the accused is not a
for an advocate. The court decided to threat to the ends of justice. It has a duty
grant bail on the condition of depositing to see that the prosecution is completed
Rs 20,000. It was clear that they would not in a fair and fearless condition in which
be able to get out of jail because neither did both accused and victim get an equal op-
they possess any valuables, nor could they portunity to make their case. The state
arrange such a large sum from others. has a duty to prevent the accused from
Shantis husband deserted her 10 influencing the process in his favour.
years ago. Since then she has been living Once the court is convinced that there
MARCH 26, 2016 vol lI no 13 EPW Economic & Political Weekly
 COMMENTARY

are no such possibilities, he is granted production before the magistrate but the control crime is considered as one of the
bail, and then the issue of security of information does not reach them. The primary parameters to assess its perfor-
property to secure his presence for trial standing legal aid counsels are supposed mance. There can also be democratic
arises. Unfortunately, the legal system to represent them when they are pro- means of controlling crime but it is not a
presumes only fear of forfeiting property duced before the magistrate. In most popular expectation. In a society which
guarantees his availability. As a result, cases, the legal aid counsels neither con- is polarised on many lines, evolving a
people who do not possess even minimal tact the prisoners nor their family mem- democratic means of controlling crime
property become unequal before the law. ber to prepare the arguments. is neither easy nor appreciated. These
Why should only property be the cri- It is important to ask why the legal aid factors primarily structure the attitude
terion for securing liberty? Why cannot system functions this way. The system is and understanding of the government as
there be other forms of securities?3 If the presided by the judiciary itself, though a party to prosecution. As a result, the
judiciary is serious about ensuring the rules and resources are made available government deploys its enormous pow-
equality of liberty and dignity to all, a by the state. The selection of legal aid erslegal and financialagainst the
relook at the functioning of bail system panels is neither done with care nor is a accused in the adversarial system of
is indispensable. careful criteria evolved. Advance con- prosecution. At present except the cor-
sultations between prisoners or their porate bodies, no individual citizen can
Dysfunctional Legal Aid family and counsels to strategise legal ever match the might of the government.
Data from the NCRB and the frank admis- intervention are never heard of. The ex- At one point in time, the well-meaning
sion of the Supreme Court seems to sug- pectations of prisoners and performance judiciary realised that the fight is be-
gest that legal aid for the poor is still a of the counsels do not meet each other. tween unequal parties of gargantuan
distant dream. Prisoners are languishing Yet there are hardly any instances of proportions. The citizen as accused can-
for years in jail before a legal aid counsel removing any counsel on grounds of not defend his life and liberty in a fight
Table 1: Caste-wise Distribution of UTPs in India non-performance. The quality against the state without adequate sup-
Years Undertrials Total Number of services provided is not re- port. The idea of legal aid thus has its
SC (%) ST (%) OBC (%) of UTPs viewed. The lower judiciary roots in realisation of inequalities of
2004 44,470 (21.62) 25,073 (12.19) 55,080 (26.78) 2,05,656 looks aside as the system resources between the accused and gov-
2005 43,684 (19.22) 27,166 (11.95) 90,355 (39.75) 2,27,285
remains dysfunctional but ernment and their invariable impact on
2006 54,210 (23.14) 30,410 (12.98) 65,537 (27.97) 2,34,310
higher judiciary periodically the outcome of prosecution.
2007 54,324 (22.50) 29,941 (12.40) 68,115 (28.22) 2,41,413
2008 54,069 (21.77) 29,306 (11.80) 76,087 (30.63) 2,48,376
wakes up. What explains the This legal aid needs to be organised by
2010 50,960 (21.96) 29,709 (12.80) 70,123 (30.22) 2,32,011 dysfunctionality and indiffer- the state through appropriate legislation
2011 53,794 (22.30) 31,652 (13.12) 71,104 (29.48) 2,41,200 ence of the system? Who has and allocation of resourceshuman and
2012 57,197 (22.44) 33,900 (13.30) 75,723 (29.71) 2,54,857 the stakes in keeping the sys- financial.4 However in a world where
2013 59,326 (21.30) 31,581 (11.34) 87,848 (31.54) 2,78,503 tem as it is? All these ques- controlling crime by any means takes
2014 57,045 (20.16) 31,648 (11.19) 88,448 (31.27) 2,82,879 tions perhaps are relevant in primacy, it is expected that many thou-
Source: National Crime Records Bureau (200414). the larger context. sands would be incarcerated without
is appointed. When they are appointed, proving their guilt, legal aid be damned.
the UTPs do not trust their efficacy. The Role of the Government
ceremonial and cursory visits by legal When we discuss the plight of prisoners Conclusions
aid counsels and magistrates to prisons and poor legal aid we often forget the Equality as an ideal exerts strong moral
are not able to address this gargantuan fact that the government has a dual role. force in modern life. But we are not sure
problem. On the one hand it has the primary duty in practice what exactly we mean when
The undertrials are routinely allotted of controlling crime. In competitive poli- we say everyone is equal before the law.
legal aid counsels at the time of first tics, the ability of the government to At present equal protection of law is
Table 2: Educational Standards of UTPs mediated by property relations. The un-
Year Illiterate Below Class X Above X and Graduate Postgraduate Holding Tech equal conditions of life like property and
Below Graduate Degree/Diploma
caste do determine the fate of the citi-
2004 83,572 (38.49) 89,000 (40.98) 33,984 (15.65) 7,936 (3.65) 1,690 (0.77) 948 (0.43)
2005 82,628 (34.85) 1,13,885 (48.03) 28,763 (12.13) 8,398 (3.54) 1,600 (0.67) 1,802 (0.76) zens and value of law.
2006 93,313 (38.04) 1,03,548 (42.22) 35,313 (14.39) 9,559 (3.89) 2,479 (1.01) 1,032 (0.42) To overcome the traditional inequali-
2007 88,312 (35.22) 1,08,642 (43.33) 39,861 (15.89) 9,762 (3.89) 2,806 (1.11) 1,344 (0.53) ties of status societies, the idea of equ-
2008 90,809 (35.21) 1,08,077 (41.90) 41,903 (16.24) 10,783 (4.18) 3,423 (1.32) 2,933 (1.14) ality before law was invented in Western
2010 78,836 (32.83) 1,02,098 (42.52) 44,594 (18.57) 10,232 (4.26) 2,893 (1.20) 1,445 (0.60)
societies. While achieving greater equa-
2011 74,203 (30.76) 1,02,852 (42.64) 48,644 (20.16) 10,698 (4.43) 3,154 (1.30) 1,649 (0.68)
2012 76,626 (30.06) 1,10,385 (43.31) 49,871 (19.56) 12,459 (4.88) 3,471 (1.36) 2,045 (0.80) lity between citizens of different social
2013 80,393 (28.87) 80,393 (28.86) 56,806 (20.39) 16,233 (5.82) 5,056 (1.81) 2,642 (0.95) backgrounds is a continuous process,
2014 82,735 (29.25) 1,19,370 (42.19) 55,605 (19.65) 17,000 (6.00) 5,202 (1.83) 2,967 (1.05) the indifferent criminal justice system
Bracket figures are in percentage. seems to be reinforcing the traditional
Source: National Crime Records Bureau (200414): The educational background of the accused tells volumes about their
ability to negotiate their freedom at various stages with the criminal justice system. inequalities behind bars. This is only
Economic & Political Weekly EPW MARCH 26, 2016 vol lI no 13 15
COMMENTARY
imitating the religions that claim all are
children of god and equal, but men and
women, priest and people, saved and
damned are differenteverybody is
equal before law but the citizens without
property and social status are not.
Notes
1 For example see: State of Rajasthan v Balchand
(AIR 1977 SC 2447), Moti Ram & Ors v State of
MP (AIR 1978 SC 1954), Maneka Gandhi v Un-
ion of India (AIR 1978 SC 597) Hussainara Kha-
toon of Bihar v State (Air 1979 SC 1360), Bhim
Singh v Union of India W P (Criminal) No 310 of
16
2005, Vijay Aggarwal v Union of India & Ors
WP(Crl) No 32/2013 on dated 5 September 2014.
2 Shanti, a woman from backward caste, is from
Tarva village in the Sonepur District of Odisha.
She and her daughter were in Sonepur jail and
were tried by the court of Sub-Divisional Judi-
cial Magistrate (SDJM), Sonepur in G R Case
No 288 of 2015.
3 Speaking through the court, Justice Krishna
Iyer said, the basic rule is bail, not jail and
observed while the systemof pecuniary bail
has a tradition behind it, the time has come for
rethinking on the subject. It may well be that in
most cases not monetary surety ship but under-
taking by relations of the petitioner or organi-
sation to which he belongs may be better and
more socially relevant (State of Rajasthan v Bal-
chand, AIR 1977 SC 2447). Again condemning
MARCH 26, 2016
the property-based bail system, he urged the
parliament to consider whether in our socialist
republic, with social justice as its hallmark,
monetary superstition, not other relevant con-
siderations like family ties, roots in the com-
munity, membership of stable organisations,
should prevail for bail bonds to ensure that the
bailee does not flee justice. The best guaran-
tee of presence in court is the reach of the law,
not the money tag (Moti Ram & Ors v State of
MP, AIR 1978 SC 1954).
4 The judiciary has rarely reprimanded the gov-
ernment for perennial problem of lack of ade-
quate number of escort police, judges, legal
experts and doctors or lack of standards in
crime management, which has been resulting
in injustice to both victims as well as the
accused.
vol lI no 13 EPW Economic & Political Weekly