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Condemned, unlike killers

- Inconvenient mass of undertrials in season of compassion

New Delhi, Feb. 23: The Chief Justice of India had ruled last week while commuting the capital punishment of three convicts in the Rajiv Gandhi assassination case: “Delay makes the process of execution of death sentence unfair, unreasonable, arbitrary and capricious….”

The consideration available to those convicted of a heinous crime has not been extended to countless others whose guilt is yet to be established.

Consider a piece of statistic: India’s jails are packed not by convicts but by those who are awaiting trial. So overwhelming is the number — 2.55 lakh at last count — that the category has contributed a word to the English language: “undertrial”, classified as Indian English in the Oxford Advanced Learner’s Dictionary. (See chart)

This means over 66 per cent of the country’s prisoners are held in captivity, although the law says that they should be presumed innocent until found guilty. In Tihar, the country’s most prominent prison, more than 75 per cent of the inmates are undertrials and many of them have served time beyond five years.

Detention may be unavoidable in cases where unchecked movement of a suspect, such as those accused of rape or terrorism, could endanger society. Even such exceptions can come under strain after the ruling that delay can be a ground for mercy for those accused of facilitating an assassination.

Rakesh, 26, does not fall into such high-risk category. Arrested on the charge of stealing Rs 500, Rakesh has already spent five years in Tihar. If found guilty, he could be imprisoned up to three months — which means the young man from Uttar Pradesh has already been punished 20 times over, although he is yet to be found guilty.

Mohammed Sagir, 35, has been accused of a far graver crime: murder. He has spent nine years in Tihar but his trial is not over yet. His case involves 100 witnesses, and less than a tenth have been examined till now. At this rate, his case could drag on for another decade.

The Supreme Court’s stand on the impact of delay in executing capital punishment, which has been getting articulated since the start of this year though the Rajiv Gandhi case was the most high-profile, has prompted at least 400 inmates, including undertrials and convicts awaiting the outcome of appeals, to petition courts separately to review their status.

Not that the courts have not laid down guidelines to ensure that those accused of minor offences do not rot in jail while the trial proceeds. The courts had also released some undertrials on NGOs’ pleas. The Supreme Court itself had ruled that no undertrial should be held in prison for more than half the duration of the maximum sentence a particular charge carried.

Criminal lawyer M.S. Khan said the Supreme Court had also laid down some specific measures. “In the cases of attempt to murder, the accused should be released on bail if the trial is not over within two years of their arrest. For undertrials facing charges in cases of theft, kidnapping, cheating, counterfeiting, molestation, the apex court fixed this period at one year,” Khan said.

But few follow these rules — apparently because of red tape, economic factors and plain callousness. A perception that the best way to drive down the crime rate is to lock up potential troublemakers provides a “moral” fig-leaf.

In Tihar, some of the inmates’ trial has not begun even after nine or 10 years. Many others are victims of prolonged trials.

“This is a sad commentary on the criminal justice system of our country which victimises the victim. Hundreds of poor men and women are languishing in jails across India for many years, without trial or conviction because they are too poor to get themselves out. Unlike rich people, they do not have the resources to afford bail and a lawyer. This has been the plight of these undertrial prisoners for many decades…” Harsh Mander, a former member of the National Advisory Council, told The Telegraph.

The plight of Rakesh, the Tihar inmate accused of stealing Rs 500, proves this point. He was granted bail after one-and-a-half years of his arrest — still far beyond the maximum possible punishment of three months in jail. But he does not have the Rs 10,000 in property needed for a bail bond and is forced to remain in judicial custody. Police said his family could not be located.

Lawyer Khan said: “Hundreds of Tihar inmates should be immediately released since they have been languishing in jail for more than the time stipulated by the apex court. The jail authorities are flouting the directive. It is their job to bring to the notice of the court the plight of the undertrials.”

A system is supposed to be in place to alert courts about undertrials whose cases are dragging on. The jail administration is expected to keep track and inform the courts. Every state government is also expected to appoint a visiting magistrate to periodically draw up a list of undertrials about whom the courts should be reminded.

After getting the reports from the jail as well as the visiting magistrate, the court can order the release of the inmates.

“But there is no genuine effort from state governments, prosecution and jail authorities to help release undertrials. They think keeping them inside jails will help them control crime further without trial,” said Supreme Court lawyer Parmanand Katara.

Tihar director-general Vimla Mehra said it was unfair to keep people in prison if they were not convicted. “The conviction rate in India is just 11-12 per cent. So, there is no point in keeping undertrials inside if prosecution cannot secure conviction. There is something seriously wrong with the justice delivery system. This is a serious issue and needs to be deliberated upon with urgency,” she said.

Responding to allegations against the jail, Mehra said: “In the wake of the recent Supreme Court order on commuting sentence of the death-row convicts, we have now decided to play a proactive role by preparing a report on individual undertrials to ascertain the years they have spent in jail. Based on the report, we will bring it to the notice of the court if he/she is eligible for bail.”

Asked if the jail authorities did not act on the Supreme Court directive earlier, Mehra said: “Better late than never…. But there are a few inmates who cannot pay the personal bond after we brought their cases to the notice of the court last year.”

Lawyer Khan said: “The criminal justice system is what the poor fear the most in the country these days.”

Mehra said the jail offered free legal aid to prisoners. “We have now increased the number of lawyers to provide legal help to undertrials.”

“But who will pay the bond? The government can’t as it involves huge amounts of money,” Neeraj Kumar, a former director-general of Tihar, said. “During my tenure, I had taken the help of some NGOs who had paid bail bonds of some inmates to help their release. But such inmates are still there in Tihar.”


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