Cuffed before guilty: The ordeal of undertrials

Lakhs await trial in India's prisons, as arbitrary arrests, judicial delays and lack of rehabilitative measures serve them a lifetime of punishment

“I had a lot of friends earlier. Now, nobody cares, and nobody calls. I have no social life. Those who watch me from afar doubt me and say that I might have really committed some crime. Otherwise, why would cops arrest me?” says Qasim*, a resident of Bengaluru, as he recalls his ordeal as an undertrial with a rueful laugh.

Arrested by police in Bengaluru in 2008, he was taken to Hubballi on the fourth day of his detainment to identify people allegedly involved in a few blast cases.

He was charged with many sections including waging war against the State and imprisoned in Hindalga jail in Belagavi, awaiting trial. His two-year-old child and pregnant wife, miles away in Bengaluru, suffered the consequences.

He was granted bail after three years in 2011. “My business that was going well took a big hit. I had to shift to a smaller house as I was unable to afford rent. Life became very difficult, though I had no connection to the case,” he says.

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Getting an acquittal from a sessions court in 2015 changed nothing for the better. “My face was plastered all over media. Everyone recognised me. No one was willing to give me business for a long time,” he adds.

Praveen* (44), once a journalist, agrees with Qasim. Arrested in 2008 and released on bail in 2009, he lost his job soon after his arrest on charges of collaborating with criminals. He was granted bail in 15 days, but could not be released until the chargesheet was filed.

By the time the chargesheet could be filed, the case went to the Supreme Court (SC) due to an appeal. Praveen had to spend a year in prison despite getting bail. When he was finally released, he could not go back to the profession he loved. The emotional toll the ordeal had on him weighed heavy. “It was very difficult for me to come out of it. Even now it is very difficult,” he says. The trial is still underway.

The law says one is “innocent until proven guilty” and “bail is the norm, jail is an exception”. However, the ground reality is different. Praveen says, in practice, it is “guilty until proven innocent.”

“It drains us emotionally. Nobody believes us. It is very difficult to face society even after getting out of jail,” he adds.

About 76% of Indian prisoners are undertrials. While nearly 18 lakh undertrials enter prisons every year in India, close to 30% of them spend more than a year in jail. Such jail terms affect their lives severely.

Long delays in pre-trial detention disproportionately affect the poor and illiterate. The now-retired Chief Justice of India N V Ramana spoke about the need to assist undertrial prisoners. This also resonated in the prime minister's speeches.

Data from the National Crime Records Bureau (NCRB) in 2020 shows that a whopping 67% of undertrials have not passed Class 10.

People with money and influence who can afford top-class lawyers do not go to trial at all. Their cases get quashed quickly on technical grounds, says Praveen. “Justice is not free, it comes with a heavy cost,” he says.

The main reason for undertrial prisoners being detained for such unreasonable amounts of time is their economic condition, says Basawa Prasad Kunale, a lawyer based in Bengaluru.

“A large number of people who come in conflict with the law belong to the poorest, the most marginalised and the most vulnerable communities. They are completely ignorant of how the criminal justice system works,” says Cecilia Davies, executive director of the Bengaluru-based Justice Initiative Foundation.

Gathering enough money to afford bail is difficult. “Most of them cannot afford bail amounts as little as Rs 5,000-10,000,” adds Cecilia.

Even meeting the bail requirement of getting personal sureties from government employees or people who own property becomes a problem, Kunale adds.

Delay in bail hearings compounds the problem. Sometimes, multiple false charges are added on once a person is arrested. When the trial of one case ends, another starts, prolonging pre-trial detention in prison.

Robin Christopher, a lawyer from Bengaluru, says that trials can be delayed for other reasons as well. Cops may not be able to complete the investigation in time due to administrative or investigative challenges.

The compounding of these factors leads to prisons being crowded with undertrials. “The problem with delays is that the number of days the accused has lost is so high that it is almost like he has served his sentence,” he adds.

Justice denied

“It does not matter how many days one spends inside the jail, the moment they step inside they are presumed guilty. It is mentally very taxing. It’s a vicious cycle. It is about changing the course of a whole family,” says Madhurima Dhanuka, Prison Reforms Programme, Commonwealth Human Rights Initiative.

While bail can be granted at the police station, in many cases, it is denied. “Our system lacks safeguards related to pre-trial detention. There is no timeline for bail hearings, investigations and trials. Such delays are a problem even for victims who are awaiting closure,” she adds.

Yellappa G, who came out of prison in 2018 after serving a sentence of 14 years, says that overcrowding is a huge problem that impacts the quality of life for all prisoners. “This (overcrowding) leads to the usage of common toilets by everyone, lack of hygiene and health risks. There are cases of many undertrials who die by suicide,” he says.

Close to 7% of deaths in jails occur due to contagious diseases such as human immunodeficiency virus (HIV) and tuberculosis. Issues like sexual assault and violence also plague the most vulnerable communities in prison.

NCRB data show that one in every five undertrials is a Muslim. Almost three in every four undertrials are Dalits, scheduled tribes or OBCs.

“They face discrimination on religious grounds even inside prisons,” says Abdul Wahid Sheikh, the author of Begunah Qaidi (Innocent Prisoner), talking about Muslim undertrials. He was accused in the 2006 Mumbai train bombings and was acquitted of all charges in 2015, after spending nine years in prison. He now runs The Innocent Network, which provides pro bono legal services to undertrials.

Plea bargaining has been often touted as a solution by the government. Introduced in 2006 in India, it refers to pre-trial negotiations with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence.

An acquitted undertrial explained to DH how this option is misused. "The cops asked me to turn approver and testify to something that I was not a witness to so that I can get out of jail sooner," he said. When inmates do not agree to such offers, they are put behind bars for unreasonable terms.

Stigma, lack of rehabilitation

Even after bail, it becomes very challenging for the accused to go back to the same place, even when the crime is not yet proven. Looming animosity and suspicion prevent them from living normal lives.

Cecilia explains the stigma. “As a society, we do not yet have the culture and the mindset to understand that they are still just suspects, accused, and not convicted.” This issue is complex, yet society looks at it in black and white, with no shades of grey.

For women undertrials, this vulnerability becomes even more intense, with a higher degree of shame and dishonour. “For a man, the justification is that he lost his temper. But for women, it is always, ‘Oh my goodness, how could she do that?’” says Cecilia, who has been working to rehabilitate released and acquitted women prisoners.

There is also no system to enable a smooth transition from life in prison to outside. Undertrials have no opportunity to work or earn while in jail. There is no compensation once they are released, which is an essential right in many other countries. Close to 50% of undertrials are young, in the formative ages of 18 to 30.

“One day you are inside and the next day you are out, and on your own. You have probably lost your job. You have a case against you which makes it more difficult to get back to normal,” says Madhurima.

There are few organisations working on prison-related issues, including undertrials, in India.

Arbitrary arrests

“When there is political, public or media pressure, police tend to play safe by resorting to arrests. Lack of professionalism and intention to overcome allegations of partisanship are other reasons for needless arrests,” says S T Ramesh, former Director General of Police, Karnataka.

“The investigation of cases under social legislation like the Dowry Prohibition Act and SC/ST atrocities act are high-pressure situations for cops. They tend to make arrests in such situations to ward off allegations,” he adds.

“Police should be more professional. They should be sensitised on attitudinal change,” says Ramesh.

Putting in place pre-arrest safeguards to check arbitrary arrests and ensuring strict judicial scrutiny is important, says Madhurima.

When legal aid is not free

There are legal services authority (LSA) cells at the national, state and district levels, to provide free legal help for the needy facing trials. But sometimes, some lawyers end up demanding money, say sources.

“People become pro bono lawyers out of their own goodwill. Increasing the compensation, helping lawyers with resources like libraries and infrastructure, giving them recognition and reviewing their performance will motivate more lawyers to offer free services to undertrials,” says Christopher.

“It’s true, I should confess to it,” says Shashidhar Shetty, member secretary of the Karnataka State Legal Services Authority (KSLSA), acknowledging existing problems. He adds that the KSLSA is working on sensitising advocates and law students on pro bono service and ethics. The authority is also planning to establish Legal Aid Defence Counsel Systems in 17 districts of Karnataka, with corporate-style offices and lawyers on its payroll.

The proportion of unsentenced detainees in the overall prison population is one of the indicators of equality in justice in the globally-agreed Sustainable Development Goals. At 76%, India has had the sixth highest percentage of undertrials in the world. Pre-arrest checks and rehabilitation programmes are essential to tackle this violation of rights and make justice a reality for all, including people awaiting trial.

Undertrial review committees

The problem of overcrowding in prisons is not new. Supreme Court recognised the problem when it heard a 2013 PIL on inhuman conditions in prisons. In 2015, it directed National Legal Services Authority (NALSA), Ministry of Home Affairs and State Legal Services Authorities (SLSAs) to form Undertrial Review Committees (UTRC) in all districts.

The committee consists of judges, police and legal service authority members. It is mandated to conduct periodic meetings and review the undertrials accused of 14 types of minor offences. Sick, old or women undertrials are also considered for release under this.

After the recent Supreme Court intervention and the prime minister’s call to release more undertrials, there has been some movement on the ground. “We have launched a UTRC campaign recently and have released more than 300 UTPs,” said Shashidhar Shetty.

A total of 2296 undertrial prisoners have been released in Karnataka since January 2021, as per UTRCs’ recommendations.

(*Some names have been changed to preserve privacy)