The last time I met Abbu was in July 2001 at the Bara Hindu Rao Hospital. He was lying on the hospital bed. I knew he would not survive. That is why I had been brought there to have a last meeting. Abu’s eyes were filled with indescribable sadness but when he looked at me I could feel the warmth of his infinite love.
Mohammed Aamir Khan | Framed as a Terrorist
Mohammed Aamir Khan is still in agony. He could not make it for his father’s burial as he was denied parole. Today when he is out of prison after battling 19 cases framed against him, Khan is at a loss of words to explain the traumatic 14 years he spent as an undertrial to prove his innocence. With a broken heart he states the reality: “The opposite of rich, strong and powerful is poor, weak and helpless — and these are the undertrials”.
He has a reason to say so. After being arrested in the 1997 twin bomb blast case (Karol Bagh, Delhi), Khan was tortured to give false statements and sign blank papers. The tormentors threatened to pluck his nails out if he dared to resist. Similar to Khan, there are many undertrials who had to go through the worst of brutalities. In case of acquittal there is no compensation for the suffering they have endured all these years.
As far as the rich and the influential are concerned, they don’t have to endure such ordeals. The legal proceedings are expedited for their convenience. We have examples of ministers, industrialists and Bollywood actors.
“Today, everyone is not getting the benefit of the judiciary. There is no equality in the treatment of people. Why?” asks Khan. Perhaps, he has raised an important question.
In January 2016, the Kejriwal government told the Delhi High Court to release undertrial prisoners, following the 2014 Supreme Courtruling. In a status report filed by the Delhi government, as many as 1,460 prisoners were languishing in jail over offences for which the maximum punishment is less than seven years. The report was submitted after the court’s query on the overcrowding in jails and detention of prisoners, both male and female, for prolonged periods.
The Supreme Court, though, took cognizance of the overcrowding in jails in 2014 and passed an order stating that undertrials who have spent half of their maximum sentence for the offences they are charged with, should be released.
A bench headed by then chief justice RM Lodha said, “The judicial officers (Magistrate/ Sessions Judge/ Chief Judicial Magistrate) shall identity prisoners who have completed half of the maximum period of imprisonment provided for the offences they are charged with. After complying the procedure under Section 436A of the Criminal Procedure Code, they shall pass appropriate order in jail itself for the release of such prisoners.”
“They shall visit once a week for two months in each jail under the jurisdiction for the purpose of the effective implementation of Section 436A for releasing prisoners.”
The crux of the matter is that those languishing in jail are socially and economically disadvantaged who cannot afford to pay the bail bond and sureties. So, this judgment was a step in the right direction. However, it is not being followed.
When it comes to jail occupancy and the percentage of undertrials the only source of information available is the 2014 data of the National Crime Records Bureau (NCRB) . The number of undertials across the country was 2, 31,962 in 2014. They have been in jail for committing crime under IPC, wherein 63,225 were lodged as undertrials over murder charges which accounted for 27.3 percent.
The highest number of undertrials charged with murder was reported from Uttar Pradesh (11,326). Bihar came second with 5,558 undertrials followed by Karnataka5,015. The figure for Madhya Pradesh was 4,890, Maharashtra 4,650 and Odisha 4,556. These six states accounted for 56.9 percent of the total undertrials.
Another interesting fact is that a total of 12,052 undertrials were imprisoned for three to five years and 3,540 were detained for more than five years.
Apparently, only a few of them ever got convicted. Also, as per the Death in Custody Reporting statistics, prepared by the Bureau of Justice, on an average four people die every day in India either in police or judicial custody.
The problem continues to persist. Ironically, there is no data that explains that this has led to a decline in crime.
However, it has been proved that there are loopholes in our criminal justice system. And surprisingly, this disturbing trend has hardly figured in the agenda of police reforms or any mainstream political party.
To make matters worse, there is no one to monitor on the state of undertrials. Researchers and ngos working for the undertrials have highlighted the deplorable condition of these people inside prison. However, recently home ministry issued a directive restricting entry of researchers and civil society activists inside jails.
Narrating how difficult it has become to work for the betterment of undertrials and improve jail conditions, Paramjeet, founder of the People Union for Democratic Rights, said, “Help should come to the needy. But we are not allowed (inside the jail). We have written several letters to the authorities but there has been no response from them.”
He also says that the new rules and regulations do not permit the families to give home-cooked food or even fruit to the prisoners.
He cites the example of 40-yearold Rafiq Sheikh, who was picked from Kashmir 16 years ago but in papers it is shown that he was arrested in Delhi. He has been languishing in Tihar Jail since then.
“His parents come twice a year from Kashmir. But they cannot give anything to their son,” said Paramjeet.
“Initially, non-vegetarian food was prohibited. Later, dal was barred and only dried vegetable were allowed. Now, outside food is banned. If a family wants to give food they have to purchase it from the canteen outside, operated by private players. This is the level of harassment,” said Paramjeet.
Barrng visits of legal aid workers can be detrimental to the prospect of promoting legal rights and rehabilitating undertrials.
With so many restrictions, the task of identifying undertrials, who are rotting in jails due to their failure to furnish securities and bond money, has come to a dead end.
“Generally, police makes most of the cases non-bailable,” said lawyer ND Pancholi. In many cases even if prisoners are charged with bailable offences, they languish in jails due to high bail bond. According to Section 436 to 450 in the CPC, the person to be released on bail has to pay a certain amount of money.”
The Delhi-based lawyer is of the view that there is no need for the judicial officers to visit prison.
“Files are in front of them; they simply need to be considerate because magistrates too act indecisively. Sometimes the police present remand papers instead of the prisoner, and the magistrate acts soft on the issue. There is no speedy trial in such a scenario,” said Pancholi.
Shockingly, the poor are perishing in jails without any hope of getting justice in the absence of an effective legal mechanism. Prolonged incarceration can lead to mental illness. Some minor offenders can become hardcore criminals in the process.
Emphasising how prisoners are kept together in barracks, Khan explained that there are no classification methods as far as they are concerned.
“Irrespective of the offence, all prisoners are packed together. They share their experiences during their stay with each other. From my personal experience in Tihar for 10 years, I can say that prisoners, who were booked for minor offences and acquitted, were jailed again for committing major offences. So, we are nowhere near reducing crime by overcrowding the jails,” said Khan.
The families also suffer a lot in the process. When Khan came out of prison, he found small paper chits in his father’s tin trunk. These chits had dates of his son’s hearing — the endless dates. Khan remembers the last words of Abbu – Beta,mein tumahri tareek par aa na saka (Son, I could not come on your hearing date.) Every undertrial who has been acquitted must have similar or more tragic stories to share. But the fact is that there has to be an end to this systemic cruelty.http://www.tehelka.com/2016/03/tribulations-of-the-undertrials/?singlepage=1