Citizens' Appeal: Ensuring expeditious and

timely justice to all

Establishing an effective criminal justice system

with emphasis on Under-trial prisoners

TEAM

Group Coordinator: Arpita Mitra

Members: Quratulain Mushtaque, Aishwarya Khanna, Deepali Dutta, Navdeep Kaur

It is a matter of deep concern that the bulk of cases pending (nearly 60 to 65 percent), relate to criminal matters, with a staggering proportion of 64.7 percent of under-trials cases, resultant issue of overcrowded prisons and human rights violation at multiple levels.

As per prison statistics of National Crime Bureau, total capacity of Jails in the country: 3,32,782; Total Number of Jail Inmates as on 31.12.2011 : 3,72,926. The number of under-trial prisoners has increased by 0.5% in 2011 (2,41,200) over 2010 (2,40,098). However, a staggering number of under-trials are imprisoned for a longer term than even the most rigorous sentence would have ever been.

Source: http://ncrb.gov.in/PSI-2011/Graphs-2011.pdf

In our attempt to hypothesize, these crucial issues within the ambit of criminal justice finds focus and emphasis of the subsequent analysis

Ineffective identification and lack of adequate institutional arrangement of/for under-trial prisoners:

Pertaining to classification of under-trial prisoners from previously existing hardened criminals, especially in the case of juvenile delinquents and other categories of prisoners to appropriate channelize prison reforms.

Infrastructural inadequacy and lack of institutionalization to promote demarcation of various categories of prisoners, considering a backlog of 35,000 cases with the Supreme Court of India, 350,000 with the high courts and over 25 million with the subordinate courts.

2. Inapplicability of archaic provisions as part of Prison Manuals without adequate revisions as per the subject to present circumstances

- Understanding the context in which the crime takes place, the larger sociological parameters and trends of nature of crime to be recognized before law can be formulated and implemented.

Concept of Human rights violation and lack of recognition of the inalienable rights of prisoners; in relation to implementation to various welfare schemes pertaining to them (such as pre-natal, post-natal care for pregnant prisoners), together with denial of Acts and Constitutional Provisions. For instance Section 437(6) is to be enacted to prevent this and makes it mandatory for a person to be released on bail where the trial has not concluded within 60 days from the first date fixed for taking evidence. Section 436-A20 which spells out the right of an under-trial prisoner to apply for bail once she/he has served one half of the maximum term of sentence she/he would have served had she/he been convicted.

4. Inadequacies and

underutilization in/of Bail Provisions:

Inaccessibility due to monetary-financial crisis. they are found to rot in prisons due to exorbitantly high bail amount. The hierarchy of courts and with appeals after appeal have led to a situation where the poor cannot reach the temple of justice due to heavy cost of its access. In other words one can state that granting justice at a higher cost indirectly means the denial of justice. Such circumstances lead to a clear violation of the Supreme Court judgment which held, legal aid to a poor is a constitutional mandate not only by virtue of Article 39A but also Articles 14, 19, 21 which cannot be denied by the government

5. Lack of Accountability and

Objective criteria for Prison Management

In terms of the debate between concern of Prison and Prisoners as a State subject vs the prerogative of the Centre to ensure accountability on a larger level.

In terms of Prison administration: Prison authorities and their responsibility to ensure decentralization of work and responsibility to ensure justice even inside the prisons, undermining which promote physical abuse and custodial violence and death for the under-trial prisoners- who are subjected to a form of brutality that the law doesn’t recognize as ‘being deserved’.

6. Objective/ Outlook of

Prison and Judicial provisions in criminal cases

Faulty understanding of emphasis on ‘punitive’ aspect, and not the concept of rehabilitation and reformation of the prisoner

Denies existence of a prisoner as a human being

“A huge majority of under-trial prisoners are poor, who have no lawyers, access to adequate medical care and thereby subjected to torture and exploitation”

Proposed suggestions

•Pertaining to involvement of the prisoner in her/his concerned case

•Suggestive element as to how to ensure speedy justice procedurally

Logistical and Procedural

• Awareness/Knowledge of the prisoner about the welfare schemes s/he is eligible to avail, specially pertaining to women prisoners and juvenile delinquents

• Rights of the Prisoner, for the contestation and deliberation happens over her/his crime, which should be delinked with the person’s individualistic identity in relation to the social- as a human being having the right to access their inalienable rights- especially right to Life.

• Clarity in institutional structures dealing directly with under-trial pending cases.

• Resolving debate concerning Prisons as a State subject vs Centre’s concern. Ultimately these indivuals can determine both favourable and unfavourable situations for the community as a whole.

• Proper registration and record-keeping in regard to under-trial prisoners: seek transparency

• Ensuring legal rights of prisoners and Right to Plea Bargaining.

• Court proceedings, video-conferencing facility to be introduced.

• Community awareness and community involvement

• Understanding context of crime

• Under-trial prisoners be offered with stimulating activities and vocational training- role of NGOs have been crucial.

Administration and accountability

Identification and Access to Legal-social rights

Coping mechanism and change in outlook

Logistical and Procedural Approach to modifying the present setup for under-

trial prisoners (Identification)

1.

• Ensure separation of the following categories of prisoners: a) Women (b) Young offenders (c) Under-trials (d) Convicts (e) Civil prisoners (f) Detenues (g) high security prisoners, for more systematic processes to avail welfare schemes.

2.

• Use of Technology: For first time offenders especially, and under-trial prisoners who await their case to be deliberated in the continuous Court proceedings, video-conferencing facility to be introduced. Already experimented in Tihar/ Rohini Jails, it seeks to strengthen prison security, save manpower-equipment-and transportation.

3.

• Recommending application and implementation of ‘Committee on Rationalization of Classification of Prisoners’ (1997), suggesting a set of categories by which prisoners should be segregated: Gender, Convicts, Under-trials, Age, Nature of Crime, Previous history, Prison term, Kind of sentence awarded and so on

4.

• Instituting the Mulla Committee Report to avoid redundancy in existing Prison Manual provisions, and update provisions as per the change in context. Under-trial prisoners should be lodged in separate institutions away from convicted prisoners. There should be proper and classification even among under-trial prisoners to ensure that contamination of first time and petty offenders into full fledged and hardened criminals does not take place

5. • Bail Amount Management: Systematic implementation of Sections 107-10 of the Criminal

Procedure Code, whereby it states how a prohibitive bail amount should be replaced by a token bail amount, accounting for poverty as an impediment to seek justice

Prison Administrative System

Prison Administrative System

Examining people who administer prisons

Need for implementation of an already existing law: to create a

Board which is expected to meet a certain number of times a year, to

facilitate inspection of a certain number of cases and ensure submission of report to the concerned Minister and the

Parliament, which in effect fails to be implemented

Need for adequate shelter homes and correctional institutions

Inadequate provisions for juvenile delinquents, together with reflection on lack of adequate mechanisms to record details about the prisoner. A

database is to be framed with specific focus on children, mentally-challenged

prisoners with special provisions

The executive personnel in prison i.e. the Superintendents, Additional Superintendents, Deputy Superintendents, Assistant Superintendents and the guards staff are entrusted with the primary responsibility to ensure that the human rights which the prisoners are entitled to are not impinged upon and restricted beyond the limit inherent in the process of incarceration itself.

Administration and Accountability (Judiciary, Organizations and the Community)

Alternatives to Imprisonment: Anger management and counseling strategies to be introduced by courts. Support from Community involvement in relation to organizations and NGOs is significant in devising coping mechanisms. Special emphasis also remain on non-custodial strategies to be implemented for women during pregnancy.

Addressing Prisoner’s concerns and complaints through the Prison Grievance Box where they can write in their issues which must be systematically addressed, even if be on an anonymous level- due to sensitivity of the content shared.

Change in Outlook- from focus on punitive aspects and punishment to prisoners to prisoner rehabilitation. This can be combined with incorporation of ideas from models of dealing with criminal justice, especially in Singapore- The Yellow Ribbon Project takes in account the social stigma faced by individuals in prisons and employing community involvement to deal with it

Instituting the Mulla Committee Report. Also promoting implementation of some of the crucial clauses of the Model Prison Manual, with important guarantees essential for safeguarding the rights of the prisoners: Right to Bail, Institutionalized Mechanism to address Grievances, Right to living accommodation, hygiene, food-clothing.

Emphasis on legal rights of prisoners and right to Plea Bargaining procedure.

Possibilities and hindrances A major factor determining the potential of this framework is the establishment of a well-connected, well-networked system. Financial strains and technological efficiency can pose a risk to the effective implementation of these ideas. Also the systematic procedure to even debate upon the unanimous and obligatory implementation of some of the modules and Manuals can acquire a lot of time duration and resources.

However, considering the Judicial system’s attempt to work on the prospects of increasing efficiency in the arena of Criminal Justice and Legal reform, the framework proposed is a plausible option. It takes 15 years on average to conduct disposition of one case, which is conceived to be reduced to 3 years by 2030.

On an overall understanding, the attempt has been to weave a broader definition of Justice for the under-trial prisoners. This looks into timely justice and expeditious form of justice- which is routinely and systematically denied to the under-trial prisoners at multiple levels. The emphasis remains on not a fast-track court, but fast manner of conducting proceedings that do not exert pressure on existing institutional structures of the Judiciary, yet at the same time does not result in overcrowding of prisons with inadequate provisions together with an observance of denial and ignorance of human inalienable rights. The approach therefore attempts to identify the importance of a well-coordinated system and approach to deal with layers of hidden abuse /exploitation alongwith delayed investigation and delayed trials, Ultimately viewing the issue from multiple angle and dimensions , specially from the perspective of a prisoner and her/his experience assist us in the process of establishing an effective criminal system.

Sources: http://www.humanrights.asia/resources/journals-magazines/article2/0204/indias-graduate-schools-of-crime http://archive.tehelka.com/story_main46.asp?filename=Ne310710undertrial.asp http://www.legalservicesindia.com/article/article/the-problems-of-undertrials-1280-1.html http://www.infochangeindia.org/human-rights/news/50000-undertrials-could-be-freed-under-indias-new-criminal-laws.html http://www.amnesty.org.au/news/comments/32192/ http://www.humanrightsinitiative.org/new/2010/undertrial_prisoners_&_criminal_justice_system.pdf Report on the National Consultation on Prison Reforms- HRLN 2010 © Google Images