The Karnataka government must urgently identify and release eligible undertrial prisoners and show its commitment to respecting prisoners’ rights, Amnesty International India said today, as it launched a new campaign named “Take Injustice Personally”.
“Two out of three people in prison in India are undertrials. Thousands of poor and voiceless undertrial prisoners, by the government’s own admission, are locked away for long periods in prison, awaiting trial for minor offences,” said G. Ananthapadmanabhan, Chief Executive, Amnesty International India.
“This campaign aims to ensure respect for the rights of undertrials who have been in jail for prolonged periods and are eligible for release under Indian law.”
The “Take Injustice Personally” campaign aims to identify and facilitate the release of undertrial prisoners eligible for release under law, including those who have already been in prison for over half the term they would have faced if convicted. These undertrials are eligible to be released on personal bond under Section 436A of the Code of Criminal Procedure.
The campaign urges people to take injustice personally and join hands to change the system. To show support for this campaign, people can give a Missed Call to 080888-88899 or sign a petition online. For more details visit www.436A.in.
Amnesty International India will also undertake research into the systemic factors that contribute to excessive pretrial detention in India, and provide specific recommendations for long-term policy reform.
“The law recognizes that undertrial prisoners should not be subjected to prolonged detention. But enforcement is poor. In Karnataka, Amnesty International India has identified several deficiencies in the prison system that contribute to excessive undertrial detention, including lack of effective data management of information relating to prisoners,” said G. Ananthapadmanabhan.
One of the cases examined by Amnesty International India was that of Prajwal (name changed), a resident of Karnataka who was accused of multiple thefts and spent 5 years in prison as an undertrial. Prajwal was eventually acquitted in all the cases against him, but had to spend 19 days in unlawful detention because prison authorities were not aware of all the acquittals. Amnesty International India facilitated Prajwal’s release after bringing information of the acquittals to the notice of prison authorities.
“Data shows over 65% of our prisoners are undertrials. This places us amongst the worst ten countries in the world. Our jails are overcrowded and one of the reasons for this is not releasing people who are eligible to be free as per the provision of Section 436A. We are concerned about animals being in cages. But forget our fellow citizens who languish in prisons unfairly, without any reason,” said former Right to Information Commissioner Shailesh Gandhi.
Other major findings by Amnesty International India include the absence of functional and effective undertrial review committees (UTRC) in districts in Karnataka, lack of adequate legal aid in Bangalore Central Jail, and delays in court productions of undertrials in Bangalore Central Jail due to a shortage of police ‘escorts’ and ineffective video-conferencing facilities.
Chetan Mahajan, President of HCL Learning and the author of The Bad boys of Bokaro Jail was arrested in 2012 in a case of company fraud and spent 30 days as an undertrial prisoner. He said, “During my time in Bokaro Jail, I saw many young, capable people with a lot of potential struggling with their plight. One inmate was released after 18 months. He hadn’t just lost 18 months of his life. He had lost his life itself. Think about it. Any career of any sort –employment, or being a student, or even your own business – would be finished in much less time. And he had lost this for no fault of his – he was finally found not guilty by the court.”
Despite a November 2013 notification from the Karnataka Ministry of Home Affairs to all districts mandating regular meetings of UTRCs, Right to Information applications and letters from district judges reveal that there has not been a significant change in the UTRCs’ functioning in most districts.
According to Bangalore Central Jail data, between January and June 2014, around 70 per cent of undertrials in the prison on average did not attend court hearings either in person or through video-conferencing facilities. The data indicates that not a single video conference hearing was conducted from February to June 2014. According to the Code of Criminal Procedure, a magistrate can extend detention in custody only when the accused is produced before him.
RTI applications also revealed that out of 11 lawyers nominated by the Bangalore Urban District Legal Services Authority in January 2012 to provide legal aid in Bangalore Central Jail, five did not visit the jail even once in two and a half years. The other six visited only one or two times during this period. Out of 6 legal aid lawyers nominated by the Bangalore Rural District Legal Services Authority in March 2013, three visited only once or twice in 2013.
“People do not lose their fundamental rights simply because they have entered prison,” said G. Ananthapadmanabhan. “The Karnataka government has taken some positive steps recently, including by directing all district judges to hold regular UTRC meetings. But much more needs to be done to ensure that the rights of undertrials are respected. Sometimes what is needed is not necessarily big-ticket reforms, but simply greater commitment to implementing existing laws,” said Ananthapadmanabhan.
“Excessive undertrial detention has high costs for individuals and their families, but also for the criminal justice system. Under international law, anyone detained on a criminal charge has the right to trial within a reasonable time or to release pending trial.”
Over two-thirds of India’s prisoners are undertrials. As of December 2012, according to the National Crime Records Bureau, 2,54,857 undertrials (66.2 per cent of the total prisoner population) were being detained in prisons in India. Around 46 per cent of these undertrials were aged between 18 and 30; 30 per cent of them were illiterate. Over 2,000 undertrials had been in detention for more than five years.
In Karnataka, as of December 2012, there were 8,940 undertrials in prison, which constitutes 68 per cent of the total prison population. Around 54 per cent of them were aged between 18 and 30, and 33 per cent were illiterate. 51 undertrials had been in detention for more than five years.
Section 436A of the Code of Criminal Procedure, 1973, states: “Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties”.
The section further states: “No such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence”.
In January 2013, the Union Ministry of Home Affairs issued a directive to all state governments urging them to adopt various measures to release eligible undertrials and reduce overcrowding in prisons. The directive urged states to constitute an undertrial Review Committee in every district with the District Judge as the chairperson, and the District Magistrate and District Superintendent of Police as members. It recommended that the Committee meet every three months and review cases where undertrials had completed more than a quarter of the maximum sentence they faced if convicted.