Source - Hindustan Times

Introduction

Recently, the National Legal Service Authority (NLSA) has relaunched a special nationwide campaign to reduce the number of undertrial prisoners.

• At the launch, Justice Sanjay Kishan Kaul urged the Undertrial Review Committees (UTRCs) of the Supreme Court to identify undertrial prisoners eligible for bail and encouraged the magistrates to modify conditions so that liberty rather than pretrial detention is the norm.

Who is Considered as Undertrial?

• An undertrial is an accused person who is being held in custody by a court of law and is awaiting trial for a crime.
• As per the 78^th Law Commission Report, an undertrial also includes a person who is in judicial custody on remand during investigation.

What is the Status of Undertrials in India?

• Undertrials constitute 77% or three times the number of convicts.
• As per the Prison Statistics India 2021 records:
  • The number of undertrial prisoners has increased from 3,71,848 in 2020 to 4,27,165 in 2021 having increased by 14.9% during this period.
  • Among the 4,27,165 undertrial prisoners, the highest number of undertrial prisoners was lodged in District Jails (51.4%, 2,19,529 undertrials) followed by Central Jails (36.2%, 1,54,447 undertrials) and Sub Jails (10.4%, 44,228 undertrials) as of 31st December 2021.
  • Uttar Pradesh has reported the maximum number of undertrials (21.2%, 90,606 undertrials) in the country followed by Bihar (13.9%, 59,577 undertrials) and Maharashtra (7.4%, 31,752 undertrials) at the end of 2021.
  • Among the 4,27,165 undertrial prisoners, only 53 were civil inmates.
  • Out of 5,54,034 prisoners, 68% belong to Scheduled Castes, Scheduled Tribes and Other Backward Classes.

What are the Issues Faced by Undertrials?

• Prisons are dangerous places and so undertrials are subjected to abuse and violence such as physical mishandling, torture, group violence.
• Many prisoners are unable to get bail due to lack of economic resources.
• Most of them face problems of overcrowding and shortage of adequate space to lodge prisoners in safe and healthy conditions.
• In the absence of the earning member of the family, the family is forced into destitution with children going astray.
• They often get neglected in jail for many years, and in some cases, it exceeds the maximum sentence for the crime they had committed.
• Circumstantial and young offenders often turn into full-fledged criminals.

What are the Legal Provisions Related to Undertrials?

State Subject

• ‘Prisons or persons detained therein’ is a State subject under Entry 4 of List II of the Seventh Schedule to the Constitution of India, 1950 (COI).
• Administration and management of prisons is the responsibility of respective State Governments.
• The Model Prisons Act, 2023 may serve as a guiding document for states for adoption in their jurisdiction.

Article 39A, COI

• Article 39A was inserted in Part IV of the COI by the 42^nd Amendment Act, 1976.
• It deals with the provisions of equal justice and free legal aid.
• It states that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
• In the case of Sunil Batra v. Delhi Administration (1978), the Supreme Court emphasized the need for free legal aid to prisoners and recommended reforms in prison management. The Court further upheld prisoners' fundamental rights, highlighting that even convicts retain certain protections.

Article 21, COI

• Article 21 is generally characterized as ‘the procedural Magna Carta protective of life and liberty’.
• It states that no person shall be deprived of his life or personal liberty except according to procedure established by law.
• Justice Bhagwati in Francis Coralie Mullin v. The Administrator (1981) said that Article 21 embodies a constitutional value of supreme importance in a democratic society.

Probation of Offenders Act, 1958

• The Probation of Offenders Act, 1958 was enacted with the objective of providing offenders the opportunity to mend rather than become hardened criminals.
• This Act provides for the release of offenders on probation or after due admonition.
• The Act permits the release of criminals on probation for good behavior if the alleged crime that they have committed is not punished by life imprisonment or death penalty.
• The Act allows for the release of first-time offenders upon proper admonition for those convicted under Sections 379, 380, 381, 404, and 420 of the Code of Criminal Procedure, 1973 (CrPC) as well as those who are subject to a 2-year sentence or a fine or both.

Section 436A, CrPC

• This section deals with the maximum period for which an undertrial prisoner can be detained.
• It states that where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.
• Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties;
• Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

What are the Provisions for Prisons Reforms in India?

• At present the Prisons Act, 1894 governs the rules and regulations related to prisons.
• The Central Government has finalized a comprehensive Model Prisons Act, 2023 to replace the pre-independence era Prisons Act, 1894 which mainly focused on keeping criminals in custody and enforcing discipline.
• The new act aims to make prisons as reformative and correctional institutions, with a focus on transforming and rehabilitating inmates back into society as law-abiding citizens.
• The Model Prisons Act, 2023 aims to address the gaps in the existing Prisons Act by providing guidance on the use of technology in prison management.
• Some salient features of the new Model Prisons Act include provisions for:
  • Security assessment and segregation of prisoners.
  • Individual sentence planning.
  • Grievance redressal.
  • Establishment of a prison development board.
  • Focus on the physical and mental well-being of prisoners.
  • Providing legal aid to prisoners, parole, furlough and premature release to incentivize good conduct.
  • Provides for the punishment of prisoners and jail staff for using prohibited items like mobile phones in jails.
  • It also incorporates vocational training and skill development of prisoners to facilitate their reintegration into society.

Way Forward

• Undertrials are overcrowding India’s prisons due to poor enforcement of legislation and legal judgements in this area by the police and jail administration.
• There is a need for a holistic legislative reform which addresses all the aforementioned issues faced by undertrials.
• Mandatory bail provisions also aim to prevent undertrials from remaining in prison for prolonged periods.
• Technology-based tools such as electronic transmission of bail orders from the court directly to prisons have recently been brought in to prevent delays in paper-based procedures.
• Further the draft of Modern Prison Act, 2023 aims to break the nexus between criminals and corrupt officials which will further improve the conditions of the prisons.