On 3 January, the Supreme Court ordered that three members of the cultural troupe, Kabir Kala Manch, to be released on bail. Kabir Kala Manch is a group of activists who use music, poetry and theatre to campaign against caste-based discrimination. They were arrested in 2013 under the draconian Unlawful Activities (Prevention) Act, 1967 (UAPA) for having alleged Maoist links. The Maharashtra Anti-Terrorism Squad filed a chargesheet against them in July 2013, but their trial is nowhere close to completion. They spent nearly four years in custody.
The Supreme Court said that in determining whether bail should be granted, the seriousness of the charges against the accused needs to be balanced with other facts like the period of custody and the likely duration of the trial. The Supreme Court concluded that this was an appropriate case for grant of bail since the trial was proceeding at a glacial pace. Only 1 out of 147 witnesses had been examined as of the date of the order.
The prolonged detention of three members of the Manch is not an isolated incident. As part of our research into excessive undertrial detention, we met 25-year-old Anjarul Haque. Anjarul is a construction worker from West Bengal and was detained in Bangalore Central Jail for seven months as an undertrial.
Even though he is now out on bail, his voice trembles and a look of fear sweeps his face when he talks about his experience. Any attempt to recall his experience with the criminal justice system remains a deeply disturbing one.
Anjarul was arrested in February 2016 for the murder of a 20-year-old woman, with whom he was in a relationship. While in custody he was tortured using the ‘Bombay cut’ method: his hands were tied behind his back, a cane was put under his knees and he was suspended above the ground and beaten.
After three days of this torture, he “confessed” to the crime. He spent seven months in prison, during which he says he was never told that he was entitled to legal aid. Within the prison walls, he found himself at the bottom of the prisoner hierarchy, since he was too poor to pay for any ‘privileges’. He told us he had to sleep in an overcrowded room and do chores like washing clothes and utensils for the ‘more powerful’ prisoners.
Any disobedience was met with violence. This included beatings with lathis by other prisoners. Movement for Justice, an NGO heard of Anjarul’s case and arranged for a lawyer who managed to get him released by executing a personal bond. When he went back to the police station to recover his PAN card, he was slapped by a policeman, who expressed surprise at his release and told him that if he had not come with his lawyer, they would have arrested him again.
System of Legal Aid is Dysfunctional
Amnesty International India filed Right to Information applications to every central and district jail in India, and the replies we received revealed that the system is virtually broken at various levels.
The legal aid system is largely dysfunctional. The legal rights programme, mandated by Home Ministry guidelines, was not properly administered in a majority of jails that responded to our RTIs. Several undertrials we spoke to said that they were not told that they were entitled to legal aid lawyers. Legal aid lawyers are poorly paid, and often over-burdened with cases. And there is no monitoring mechanism to evaluate the quality of legal aid representation in most states.
RTI replies also revealed a shortage of public prosecutors in many states. In some states, there is no sanctioned number of posts for public prosecutors and appointments are made on an ad-hoc basis. In others there is a shortage compared to the sanctioned number. Public prosecutors also do not work in an ideal environment.
In Court on its own motion vs. State, 2014 the Delhi High Court appointed an amicus curiae to provide suggestions to improve and strengthen the functioning of prosecutors and the prosecution agencies. The amicus curiae observed that public prosecutors are not being paid on time, did not have adequate office space or storage space to keep their files, and were not provided with any internet access as well as sufficient stationery. The High Court stated that it is the statutory obligation of the State to ensure that every criminal court has the assistance of an able and competent public prosecutor. It also said that the state government had to ensure that the public prosecutors so appointed have all the requisite facilities for their efficient functioning to discharge their day to day duties. How much of this has been implemented is yet to be seen.
Number of Undertrials
Across India, lakhs of undertrials languish in prisons, while their trials proceed at excruciatingly slow pace in overburdened criminal courts. The National Crime Records Bureau statistics said that 2.82 lakh undertrials were in prison at the end of 2015. But the number of undertrials who were in prison over the course of the year, and then released is likely to be much higher.
At least 35 percent of these undertrials have spent six months or more in jail. 53 percent of the undertrial population is SC, ST or Muslim, which is much higher than their proportion to the population.
The issue of excessive undertrial detention is not of recent origin. The Supreme Court has been passing orders on the release of undertrials since 1979 and two Law Commission Reports (78th and 239th) have examined the issue. Various central governments have taken sporadic measures to reduce excessive undertrial detention. Yet, little seems to have changed.
Missing Out on Hearings
Criminal trials can be conducted fairly only if the accused is produced in court for every hearing, unless the court has granted them an exemption from personal appearance. However, undertrials frequently miss hearings because there are not enough police escorts to take them to court. Not only is there a shortage of armed police who are tasked with escorting undertrials to court, they are also routinely taken away for deployment on VIP duty, elections and state events.
Influential Manage to Avoid Detention
The safeguards mandated by law to protect the rights of undertrials have been effectively dismantled as a consequence of apathy and a lack of political will. Although the issue makes headlines when it becomes the subject of Supreme Court judgement or an influential person like Sunil Mittal comments on it, for the most part it is not on the radar of most citizens.
Undertrials with wealth or political clout like Salman Khan may be able to avoid excessive detention. But detainees like Anjarul are not able to depend on the criminal justice system and unfortunately have to fall back on random acts of kindness https://www.thequint.com/blogs/2017/02/17/dark-truth-about-undertrials-no-legal-aid-and-inhumane-treatment-ncrb