The plight of Under-trials in India

under-trial in India
Image Courtesy: The Huffington Post

Sitting in Manju’s* cheerful home that was perched precariously atop another in a slum in Malad, it was easy to forget that she was a former inmate at Byculla Women’s Jail, who had been released earlier this year. Manju was in jail for only three months after being caught and arrested for allegedly forging her PAN card. She recounts her experiences hesitantly, “It felt like three years. I didn’t know how to contact my children to tell them I was here, or what to do next- how do I arrange for my bail? How do I find and pay for a lawyer? I was consumed with fear and anxiety.”

Manju’s story finds echoes across the country. India has one of the largest numbers of under-trials in the world, with 67% of the prison population awaiting or undergoing trial, as of December 2015.[i] A large proportion of these (61% of litigants surveyed in Daksh’s 2015 Access to Justice Survey) remain incarcerated only because they cannot afford bail.[ii] This under-trial population is trapped at the very end of the justice system and faces the compounded and most acute challenges of accessing justice in India.

According to Amnesty International’s 2017 report, ‘Justice Under Trial: A Study of Pre-Trial Detention in India’, 29% of under-trials are not formally literate and 42% have not completed secondary education.[iii] Thus, for a significant proportion of the under-trial population, quality legal aid in the form of legal counselling and representation is imperative, to ensure that they are aware of their basic rights under law and have a chance at a fair trial. Unfortunately more often than not, under-trials, particularly those from weak socio-economic backgrounds, are unaware of the state provisions that can help them. Article 39A of the Indian Constitution reads, “The state… shall, in particular, provide free legal aid… to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”[iv] In theory, this constitutional provision ensures that even the most disadvantaged of under-trials is allotted a lawyer, who can file for bail and advise him/her on the optimal legal strategy for the case. In reality, under-trials like Manju are left in the dark, with no one to explain their rights to them and unaware of where to begin the fight to claim their rights.

Those who do manage to access state-sponsored lawyers have woeful stories to narrate. Experts agree that India’s legal aid system is weak — stocked with lawyers who have either not set up their own litigation practices yet, or have failed to achieve success at the courts. From the confines of prison, there is very little that under-trials can do if they are unhappy with the sub-par quality of their representation, and are often forced to accept lawyers who adversely impact their cases. Those whose cases do see the light of day in court are faced with another roadblock- that of pendency at the courts. Judicial delays and protracted legal proceedings lead to under-trials (technically innocent until proven guilty) being incarcerated for extended periods of time. Take for instance the case of Rajesh and Nupur Talwar, who served four years in prison before being acquitted of the crime of murdering their daughter Aarushi and servant Hemraj by the Allahabad High Court in October. The emotional burden of being innocent and imprisoned is unimaginable- and yet there are numerous cases in prisons across India of such individuals or those who have served sentences even longer than what their conviction would entail.

Finally, there is limited visibility on the extent to which the human rights of under-trials (and convicts) are flouted by prison authorities, such as superintendents and jailers. Statutes such as the Prisoners Act, 1984 and the Model Manual Prison India include provisions for the supply of clothing and food to prisoners, but more importantly detail restrictions on the powers of the jailers and superintendents. However, the opacity of the prison system and lack of accountability mechanisms paints a murky picture of the treatment of inmates. Manju instantly clammed up when I questioned her on this, leaving me with a hushed, “I don’t want to talk about it.”

The National Legal Service Authority, State Legal Service Authorities and other government bodies continue to attempt to address problems of accessing justice as an under-trial. These efforts are supported by non-profit organizations that have rallied to respond to the critical and most urgent needs of under-trials. For instance, Mumbai-based non-profit Prayas was instrumental in Manju’s release and subsequent rehabilitation into society. The organisation’s social workers connected Manju to a good lawyer and helped her establish contact with her family members, so that she could apply and arrange for her bail. Post her release, Prayas continues to work with her, ensuring that she attends her court hearings, and settles into her job as a domestic worker. In the course of Dasra’s research in the Governance sector since 2014, it identified other organisations doing similar work, including Voluntary Action for Rehabilitation and Development (VARHAD), Sahyog Trust and Peacemakers. These non-profits currently bridge the gap in government efforts of supporting and rehabilitating under-trials.

It is important to recognise the plight of the under-trials, equal to each one of us in the eyes of the law. Despite the fact that their guilt is yet to be determined, they are treated as criminals and subjected to the same social prejudices. They face challenges at every step of the journey to justice- from accessing quality legal aid, to delays at the courts and violations of human rights within prisons. The government and non-profits work together to limit extended, unfair incarcerations, but there is a long way to go to ensure that every under-trial has a chance at freedom and a better future.

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