Plight of Undertrials in India

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Editor: NAGARAJA.M.R… VOL.9 issue.09…… .05/03/2015

Krishnagiri man spends 12 years in jail without trial, HC orders his release

CHENNAI: T Ravi, 47, has spent more than 25% of his life in jail as an undertrial - no trial, no evidence and no conviction. Arrested in 2002 in a murder case in Krishnagiri district, he has spent last 12 years behind the bars as police dragged the case citing difficulty in getting witnesses to testify and the trial court denied him bail saying he doesn't have a permanent address.

Terming Ravi's long incarceration as unfortunate, the Madras high court has now ordered his immediate release on bail. The court also directed the Tamil Nadu State Legal Services Authority (TNSLSA) to take a survey of people languishing in jail for long periods and extend them necessary legal assistance.

"Keeping a person in jail as an undertrial for 12 years without evidence, trial and conviction is not fair. It is unreasonable. It is inequitable. It indicates that there are cracks in our criminal justice system," Justice P Devadas said last week. "Merely because a person has become an accused, he cannot be subjected to cellular servitude. He cannot be stated to have lost his human rights. He cannot be treated as an animal," the judge said, directing the Krishnagiri sessions court to complete trial in the case within two months.

Ravi was arrested in 2002 by Bagaloor police in Krishnagiri district in connection with a case of murder for gain. Recently, he moved the sessions court for bail. The court refused to release him after police justified the delay saying there was some difficulty in producing witnesses, who hailed from West Bengal, Assam and Rajasthan. Also, Ravi did not have any permanent residence, the court said.

Ravi approached the HC, saying though he was prepared to face the trial there was no sign of its commencement. Also, his co-accused had been released on bail while he alone had been denied the relief by the Krishnagiri court, he said.

Justice Devadas flayed the subordinate court saying the judge failed to take note of the fact that Ravi had been in jail as an undertrial for 12 years, and that non-production of witnesses by the prosecution was not his fault. Pointing out that Ravi had a family, voter identity card and ration card, the judge said he could not be held responsible for the delay in the trial.

Keeping a person in jail for about a dozen years without even informing him whether he was convicted or acquitted is inhuman and violation of his human rights, Justice Devadas said, adding: "Right to speedy trial and speedy justice is a component of Article 21 of the Constitution. But, in this case, there is a delay of 12 years in conducting the trial. It is mainly because of the non-production of witnesses by the prosecution. Ravi cannot be blamed for this. There is complete infraction of Ravi's fundamental rights."

Editorial : Safety of Jail Inmates Responsibility of Judges

The presiding judge of the case  who  issues arrest warrant against a person , who rejects the bail plea  of the accused  and  the judge who remands accused to police custody / judicial custody  is fully responsible for safety , human rights of the prison / jail inmates. Use of 3^rd degree torture is rampant in jails   and in all such cases ,  respective presiding judges  must be made to  pay compensation from their pockets and judges must be charged  for  AIDING & ABETTING  THE MURDER  ATTEMPT  on prisoner  by  jail / police authorities.  Are the JUDGES & POLICE above Law ?

JAI HIND. VANDE MATARAM.

Your’s

Nagaraja.M.R.

India Witnessed Rise In Communal Violence Under Modi Government, Says Amnesty

Human rights group Amnesty International today criticised the Narendra Modi-led government, saying under the new regime India has witnessed a rise in communal violence and its Land Acquisition Ordinance has put thousands of Indians at "risk" of forcible eviction.
In its Annual Report 2015, released here, Amnesty highlighted poll-related violence in the lead up to the May 2014 General Elections, communal clashes and failure of consultation on corporate projects as key concerns.
"National elections in May saw a government led by the Bharatiya Janata Party come to power with a landslide victory. Prime Minister Narendra Modi, who campaigned on promises of good governance and development for all, made commitments to improve access to financial services and sanitation for people living in poverty.
"However, the government took steps towards reducing requirements to consult with communities affected by corporate-led projects," Amnesty said in its report.
The report highlighted that, "the authorities continued to violate people's rights to privacy and freedom of expression. There was a rise in communal violence in Uttar Pradesh and some other states and corruption, caste-based discrimination and caste violence remained pervasive."
In reference to communal violence, it noted that, "A string of communally charged incidents in Uttar Pradesh prior to elections led to an increase in tensions between Hindu and Muslim communities...Politicians were accused of and in some cases criminally charged with making provocative speeches."
"...In December, Hindu groups were accused of forcibly converting several Muslims and Christians to Hinduism," the report said.
The rights body also went on to single out the Land Acquisition Ordinance for criticism as it described the move as a new "risk" to thousands of Indians.
"In December, the government passed a temporary law which removed requirements related to seeking the consent of affected communities and assessing social impact when state authorities acquired land for certain projects," it said.
"Thousands of people remained at risk of being forcibly evicted from their homes and lands for large infrastructure projects. Particularly vulnerable were Adivasi communities living near new and expanding mines and dams," it added .
While the group recognised "progressive legal reform", it was critical of India's "overburdened and under-funded criminal justice system".
Amnesty pointed out two court orders as important "gains" for India in 2014, including a Bhopal court's decision in November to demand that its criminal summons against the Dow Chemical Company to be re-issued and a "landmark judgement" by the Supreme Court in April granting legal recognition to transgender people.

INDIA: Regressive changes to land acquisition law must not be enacted

Indian lawmakers should reject any amendments to the land acquisition law that do away with crucial human rights safeguards and could lead to forced evictions, Amnesty International India said today.

The government is planning to soon introduce in the lower house of Parliament the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Bill 2015. The Bill, if passed, will replace an executive ordinance that made changes to key provisions on consent and social impact assessment related to land acquisition in December 2014.

“The land acquisition ordinance extended compensation and rehabilitation benefits to communities affected by certain kinds of development projects,” said Aruna Chandrasekhar, Business and Human Rights Researcher at Amnesty International India. “But it also dismantled safeguards that are central to the land acquisition law, undermining the rights of communities to participation and consultation.”

The land acquisition law, which came into force in January 2014, stated that the consent of 70 per cent of families is mandatory where land is sought to be acquired for public-private partnership projects, and 80 per cent for private projects. The executive ordinance removed these requirements for a range of projects, including those relating to defence and national security, rural infrastructure, affordable housing, industrial corridors and infrastructure.

The ordinance also exempted these projects from having to go through a social impact assessment – a study by independent experts to map a project’s impact on people’s lands and livelihoods, and its economic, social and cultural consequences, in consultation with affected communities.

“It is surprising that the government does not seem to want to learn about the social impact of a project before approving land acquisition for it,” said Aruna Chandrasekhar.

“Without a social impact assessment, rehabilitation and compensation measures are likely to be flawed and inadequate. Exempting projects from these assessments can in effect deprive communities of the opportunity to be consulted on decisions that have far-reaching social and economic impacts on them.”

“Parliamentarians must instead insist on a law that requires private and state-owned companies to carry out human rights due diligence.”

The land acquisition law initially did not apply to acquisition carried out for projects under 13 central Acts, including for coal mining by the state. The ordinance extended the law’s provisions on compensation, rehabilitation and resettlement to these Acts.

However, the requirements of consent and social impact assessment still do not apply to acquisition carried out under these 13 Acts. A provision requiring the consent of communities in ‘scheduled areas’ - Adivasi regions identified under the Constitution as deserving special protection - also does not apply.

“Under international law, the government has a duty to meaningfully consult with Adivasis, who are among India’s most vulnerable people, and seek their consent on projects that affect them,” said Aruna Chandrasekhar.

“The government must ensure that development projects do not end up jeopardizing human rights. Instead of rushing to amend a law that has barely been implemented, Parliament must address existing gaps, and consult affected communities and other stakeholders to ensure that development is both holistic and sustainable. ”

Background

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, in its original form, fell short of international standards on human rights impact assessment; free, prior and informed consent; consultation and rehabilitation. The Act came into force on 1 January 2014, replacing the Land Acquisition Act of 1894.

In recent months, the government has passed a series of executive orders which undermine communities’ rights, including: removing the requirement of public hearings with affected communities for coal mines of certain sizes seeking to expand their production; making certain categories of projects exempt from requiring environment clearances and consulting communities; and diluting requirements of gram sabha consent where certain forest land is sought to be used for industrial purposes.

International human rights law and standards, including the International Covenant on Economic, Social and Cultural Rights; the International Covenant on the Elimination of All Forms of Racial Discrimination; and the UN Declaration on the Rights of Indigenous Peoples mandate the seeking of the free, prior and informed consent of indigenous communities in decisions that affect them.

According to the UN Guiding Principles on Business and Human Rights, companies should have in place a human rights due diligence process to identify, prevent and mitigate their impacts on human rights. States can impose a requirement for human rights due diligence where business operations pose a significant risk to human rights.

Two-thirds of prison inmates in India are undertrials

Over 3,000 of the 2.8 lakh have been behind bars for more than five years

Two of every three persons incarcerated in India have not yet been convicted of any crime, and Muslims are over-represented among such undertrials, new official data show.
Despite repeated Supreme Court orders on the rights of undertrials, the jails are filling ever faster with them, shows Prisons Statistics for 2013 released by the National Crime Records Bureau. The number of convicts grew by 1.4 per cent from 2012 to 2013, but the number of undertrials shot up by 9.3 per cent during the period.
Men make up 96 per cent of all prison inmates. Nearly 2,000 children of women inmates live behind bars, 80 per cent of those women being undertrials.
A sharp increase in the number of undertrials charged with crimes against women contributes to the rise in the number of all undertrials. The number of those incarcerated on charges of rape rose by over 30 per cent from 2012 to 2013, and the number facing charges of molestation grew by over 50 per cent. The number of men convicted of rape rose dramatically too, by 16 per cent — the biggest increase among major sections of the Indian Penal Code.
Undertrials are younger than convicts — nearly half are under the age of 30 and over 70 per cent have not completed school. Muslims form 21 per cent of them. On the other hand, 17 per cent of those convicted are Muslims.
“These numbers definitely point to a failure of the delivery of justice, but it also appears that the system is unequally unjust,” said Harsh Mander, Director of the Centre for Equity Studies, which works on issues of access to justice in prisons. “The disproportionate presence of members of the Scheduled Castes and Scheduled Tribes and Muslims among undertrials points not simply to a technical breakdown but also to the increased vulnerability of these groups, and probably bias,” Mr. Mander told The Hindu.
Among the 2.8 lakh undertrials, over 3,000 have been behind bars for over five years. Between them, Uttar Pradesh and Bihar are home to 1,500 of those undertrials. Most undertrials — 60 per cent of them — have, however, been behind bars for less than six months.
While most States have a little over twice as many undertrials as convicts, Bihar has a staggering six times as many.
The NCRB numbers also provide the only insight available into the number of people on death row; at the end of 2013, 382 persons had been sentenced to death and were awaiting either legal relief or the execution of sentence.
"Excessive pre-trial detention violates undertrial prisoners’ rights to liberty and fair trial, and adversely impacts their life and livelihood," Divya Iyer, Research Manager at Amnesty International India, said, adding that the new numbers were a "serious concern". While a lack of effective management of information relating to prisoners, the absence of functional and effective undertrial review committees, lack of adequate legal aid, and delays in court productions of undertrials contributed to the problem, the authorities must as a first step identify and release all those prisoners who are eligible for release under law, including those who have already been in prison for over half the term they would have faced if convicted, Ms. Iyer said.

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Laws dealing with undertrials in India are flawed

By Bibek Debroy

Reports have appeared about a review of undertrial prisoners. Compared to 1,27,000 convicts, there are 2,54,000 undertrial prisoners. Prisons were never meant to cater to undertrials. Unfortunately, overcrowding of prisons is primarily because of undertrials. To use a cliche, those who should be in jail aren’t in jail. Those who shouldn’t be in jail are in jail.

Undertrials aren’t those in police custody. (That isn’t supposed to be for more than 15 days.) They are those in judicial custody either because courts have denied them bail because these are non-bailable offences, or because despite these being bailable offences, prisoners haven’t been able to furnish bail. The problem is that many poor people are unable to furnish bail.

Accordingly, we had an amendment to the Criminal Procedure Code (CrPC) in 2005, Section 436A. Shorn of legal jargon, this excludes offences for which capital punishment is possible. For everything else, if detention has been for more than half the maximum period of imprisonment prescribed for that offence, the prisoner will be released on a personal bond, with or without sureties. (However, after hearing the public prosecutor, the court has the discretion to deviate from this.) Also, no prisoner will be detained for more than the maximum period of imprisonment prescribed for the offence.

So, these recent reports are about the 2005 amendment being implemented. In 2005, there were supposed to be review committees in all districts. Nothing happened. For every district, there will now be a review panel with the district judge, district magistrate and superintendent of police.

They will meet once every three months and status reports will be submitted. The problem isn’t even across states. For instance, if you take a snapshot of undertrials across states, among large states, there are large numbers of undertrials in Bihar, Jharkhand, Madhya Pradesh, Maharashtra, Uttar Pradesh and West Bengal.

Petty Offences, Long Terms

There is a stock and a flow. The number of undertrials is large at any one point in time. For the country as a whole, the number of undertrials detained for more than five years is lower than 2,000. With a cut-off of three years, the figure is lower than 8,000.

Although we don’t have a break-up according to offences, this suggests that there are two kinds of undertrials: those accused of really serious crimes (where capital punishment is possible) and petty offences. Unfairness is more about petty offences, where there are instances of prisoners having been undertrials for longer than the maximum period of imprisonment prescribed.

The problem is speeding up justice delivery in criminal cases. But there is a narrower problem with bail laws. Here is CrPC’s Section 441 (1), “Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or court, as the case may be.”

Asurety is a person who takes responsibility for another person’s undertaking some action. This reminds me of Section 109 of the CrPC where people suspected of committing cognisable offences can be ordered to execute bonds, with or without sureties. In 1996, Surjit Singh Barnala wrote Story of an Escape, in which there is an interesting anecdote.

Bail Can Buy Happiness

As former Punjab chief minister, Barnala got tired of all the security. In 1994, slipping away from guards, he disguised himself and wandered around incognito and was picked up for questioning by police in Uttar Pradesh. Since he had no identity papers on him, the cops wanted two respectable people (sureties) who would vouch for his identity. Barnala could only think of Mulayam Singh Yadav. Read the (generally trashed) book for what happened next. The point is the discretion Section 441 grants to police officers and the court.

There is a presumption that only those with access to financial resources and ‘sureties’ will be entitled to bail. Who can phrase it better than Justice VR Krishna Iyer? In a 1978 judgment, he wrote, “Affluents do not befriend indigents.” Does one really have to insist on monetary amounts and sureties, regardless of the offence? Or is a personal bond good enough?

Bond of Hope

There is a 1996 Supreme Court judgment (Common Cause case) that says precisely this: the accused must be released on a personal bond. However, a subsequent judgment inserted a caveat to exclude cases where delays are caused by ‘wrongdoing’ by the accused. That Section 436A also has a rather worrying explanation, “In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.”

Finally, do we have satisfactory databases about prisoners in various jails? We know about central jails. But what about district jails and subjails? That’s where the bulk of the problem lies.

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