Ummid.com: Bengaluru: Friday, July 14, 2017.
Legal
safeguards to prevent excessive pretrial detention are routinely flouted across
states in India, leading to the violations of detainees’ fair trial rights,
Amnesty International India said in a new briefing published today.
The briefing,
“Justice Under Trial: A study of pre-trial detention in India”, analyzes the
responses to about 3000 Right to Information (RTI) applications filed by
Amnesty International India to the nearly 500 district and central prisons in
the country on the implementation of safeguards to protect the rights of
pre-trial detainees, or ‘undertrials’.
“Two out of
three people in India’s prisons are undertrials, and this proportion has not
budged for several years despite various Supreme Court judgments, executive
guidelines and legal reforms,” said Asmita Basu, Programmes Director, Amnesty
International India.
“This
briefing highlights some of the systemic problems in the criminal justice
system, which contribute to excessive pre-trial detention and overcrowding in
prisons. These include failure to produce undertrials in court and to provide
them legal aid.”
The briefing
reveals a severe shortage across many states of police ‘escorts’ to take
undertrials to court for their hearings. Between September 2014 and February
2015, in over 110,000 instances, undertrials were not produced for their
hearings in court either in person or through video-conferencing facilities, in
effect hampering their right to trial within a reasonable time.
Amnesty said
the country's undertrial population has a disproportionate number of Muslims,
Dalits and Adivasis, compared to their share in the overall population, while
29 per cent of undertrials were not formally literate.
RTI data also
revealed glaring gaps in the legal aid system. In most states, legal aid
lawyers visited prisons less than once a month. Many states have relatively few
legal aid lawyers, compared to their undertrial populations. 5% of jails
reported having no legal aid lawyers at all.
Prison
authorities in several states also appeared to have a poor understanding of
section 436A of the Code of Criminal Procedure, which was introduced in 2005 to
prevent undertrials from being held in pre-trial detention for more than half
the sentence they would receive if convicted.
Directives
issued by the Ministry of Home Affairs in 2013 to reduce overcrowding of jails
were also not properly followed. Only 38% of prisons which responded to RTI
applications produced minutes of the meetings of Undertrial Review Committees.
“It is
shocking that nearly thirty years after the Supreme Court first drew attention
to the violations of undertrials’ rights, India is still struggling to tackle
this issue effectively,” said Leah Verghese, Senior Campaigner and Researcher,
Amnesty International India.
“The overuse
of pre-trial detention effectively punishes people before they are convicted,
and makes a mockery of their right to be presumed innocent until proven guilty.
Tackling this issue requires concerted efforts from both the central government
and state governments, which have unfortunately come to treat the incarceration
of undertrials as the rule rather than the exception.
“The central
government has announced its intention to curb excessive undertrial detention.
It is high time that this promise is finally kept. ”
Under
international human rights law, all detainees have a right to trial within a
reasonable time or to release. The right to liberty requires that deprivation
of liberty should always be the exception, and imposed only if it is justified
and necessary in the circumstances of the case.
Detention may
be warranted if there is a risk that the arrested person may, for instance,
intimidate a witness or tamper with evidence, but all possible non-custodial
measures, such as bail or undertaking to appear, must be explored by judicial
authorities before making a decision to remand in custody.
The briefing
makes several recommendations to authorities at both central and state levels,
including standardization of the remuneration paid to legal aid lawyers across
India; the establishment of a database to alert prison authorities about
undertrials eligible for release; strengthening of the monitoring of legal aid
lawyers’ effectiveness; and the creation of a separate reserve of police
personnel dedicated to providing escorts for undertrials to be taken to court.
As of
December 2015, 67% of prisoners in India were undertrials. India’s undertrial
population has a disproportionate number of Muslims, Dalits and Adivasis,
compared to their share in the overall population. 29% of undertrials are not
formally literate. A quarter have been in prison for more than a year. Most
prisons in India are overcrowded, partly as a result of excessive undertrial
detention. The average occupancy rate in Indian prisons is 114%.