The Issue

India has one of the highest pre-trial detainee populations in the world. Nearly two-thirds of the country’s prisoners are ‘undertrials’. These include men and women presumed to be innocent in the eyes of the law but who are in jail for months and even years waiting for the law to take its course. Some have even been detained for periods longer than what a formal conviction would have brought.

In 2014, there were 4,18,536 prisoners in various jails in India, of which over 2.8 lakh – more than 67% - were undertrials, according to the National Crime Records Bureau (NCRB) Prison Statistics –India 2014. NCRB all India figures reveal that 47.8% of undertrials are between the age group of 18 to 30 years.

‘Taking Injustice Personally’ and Section 436A Code of Criminal Procedure (CrPC)

The overarching objective of Amnesty International India’s campaign ‘Taking Injustice Personally’ is to work towards reducing excessive pretrial detention for undertrials, by addressing barriers, both systemic and operational, which exacerbate the problem of prolonged detention in jails. In many cases, such detention can be unlawful and in violation of various international and domestic laws applicable to undertrials.

Cognizant of the fact that there are numerous ways in which the problem of excessive pretrial detention can be addressed, we decided to work towards ensuring ‘effective implementation of S. 436A Code of Criminal Procedure (CrPC)’ as one way to achieve the project objective.

AI India has been working on this issue since 2013, with relevant state agencies and the judiciary in seeking accurate application of this law. This section allows for the release of an undertrial, on personal bond, – it is hence particularly useful for undertrials who cannot afford to pay bail.

During the course of our research on this issue, AI India identified four key issues which hinder application of this law. Most of these issues also contribute substantially to the problem of excessive pretrial detention. These are:

1. Lack of proper prison and court record management

2. Lack of effective legal aid services

3. Delays in court productions due to lack of adequate police escorts and video-conferencing facilities

4. Non-functional Undertrial Review Committees (UTRC)

Coupled with these reasons are a lack of awareness and understanding about application of this law.

For a detailed insight into these reasons, please read our briefing - AI India findings and recommendations.

In August-September 2014, the government expressed an intent to push for implementation of S. 436A CrPC - to decongest prisons and uphold the rights of undertrials.

This was soon followed by a Supreme Court order in the Bhim Singh vs. Union of India case, where the Court directed district judges across all states to visit jails within their jurisdiction and identify and release undertrials eligible for release under S. 436A CrPC. Despite at least seven hearings over the last one year and nearly 10 months since the expiry of the deadline set by the Supreme Court in September 2014, the order has not been complied with. Also, there is no indication from the Central Government on the number of under trials released pursuant to this order.

All these initiatives can contribute to the effective implementation of this law. However, unless the systemic and operational failings highlighted above are not rectified, they are likely to have limited long-term and sustainable impact.

Consequences of excessive undertrial detention and aggravating factors

1. Overcrowding in jails.

Excessive undertrial detention not only adversely affects the lives of prisoners and their families, but also leads to overcrowding in prisons, which puts undue pressure on the entire criminal justice system machinery. Prisons in India have an average occupancy rate of 117.4%. Some of the most overcrowded jails in India include those situated in Dadra and Nagar Haveli (33.17%) Chhattisgarh (258.9%) and Delhi (221.6%).

This means, for example, in Chhattisgarh, every cell meant to house 100 inmates in actuality houses 259 inmates.

Needless to say, overcrowded jails lead to extremely poor conditions of detention, aggravating the lack of adequate sanitation, food and health care in jails. The conditions in jails are conducive for the transmission of diseases including skin infections, tuberculosis, malaria and other communicable diseases.

Overcrowding also adds to the burden on jail officials who have to manage the security and movement of a large number of undertrials within the jail premises. Congested jails often tend to be chaotic and unsupervised. Inmates are at a heightened risk of physical and psychological abuse and ill-treatment and even torture.

2. Inadequate legal representation.

Most undertrials in India have low levels of education and are therefore unlikely to be aware of their legal rights. According to NCRB 2013 figures, over 71% of the undertrial population is educated below class ten.

Undertrials, thus, are among the most vulnerable sections of the prison population – they are less able to contribute to the preparation of their defence than defendants who remain at liberty. The quality of communication between the undertrial and his/her lawyer remains largely poor with the former often dependent (due to restricted access to telephones, etc.) on the latter to communicate with them. The meeting rooms where undertrials meet their lawyers are mostly crowded and guarded by jail officials, making the environment unconducive for uninhibited and effective meetings.

Undertrials may also be unable to engage a private lawyer due to a lack of resources. They are then compelled to seek free legal aid from the state, which can be inadequate and ineffective.

3. Loss of familial ties, livelihood and adverse impact on family.

Pretrial detention, particularly when it is indefinite, subjects undertrials to severe emotional stress due to separation from their family, friends and community. Furthermore, uncertainty regarding the duration of detention coupled with anxieties related to unsuitable and sometimes dangerous prison conditions, can contribute to depression and suicidal tendencies.

Undertrials detained for long periods of time lose their jobs, which could cause further economic hardship to them and their families.

4. Loss to the state exchequer

Apart from violating numerous rights of an individual, excessive undertrial detention also leads to wasting of public resources.

According to the NCRB, the average annual expenditure per inmate is Rs. 24,768.

The amount spent by the state on overcrowded jails can, instead, be better utilized on activities which promote public security, such as increasing the number of jail and police personnel, investing in their training and infrastructural facilities etc.

Amnesty International India’s work with Government of Karnataka

Amnesty International India (AI India) seeks to work with the Government of Karnataka to reduce the number of undertrials who are in detention in jails across the state. This will help decrease overcrowding, ensure that undertrials eligible to be released under law are not held in jail, and make Karnataka’s criminal justice system a role model for the rest of the country.

Towards this objective, immediate and effective implementation of Sec. 436A CrPC has been stressed by both the Central and State Government vide the:

a. Central Directive No. V-13013/70/2012-IS (VI), dated 17th January 2013 (enclosed A1), issued by Union Ministry of Home Affairs (CS Division) and

b. Government Order No HD 51 PRA 2012, dated 12th November 2013 (enclosed A2), issued by the Karnataka Home Department

We have been working on this issue since March 2013, and have met several people including the Home Minister, the Law Minister, Principal Secretary (Home), ADGP (Prisons), former Supreme Court and High Court judges, members of the Legal Aid community, activists, lawyers, public prosecutors, and former and current police officials.

We have also conducted an interactive session at the Karnataka Judicial Academy with the Principal District Judges of all districts in Karnataka. The aim was to, firstly, understand the systemic factors and challenges that contribute to excessive and prolonged pretrial detention in Karnataka; and secondly to explore creative ways of reducing pretrial detention.