Undertrials, not convicts, clog jails

India’s prisons are bursting at the seams. Thanks to justice delays — inadequate courts and judges  — and a legal system that puts a person behind bars years before conviction, the country’s jails are packed with undertrials.

According to figures from the National Crime Records Bureau, there were 3,58,368 jail inmates at the end of 2005 and over two-thirds of them were undertrials awaiting justice. Nearly 2,000 of them have already spent more than five years in jail.

When the Brits left in 1947, Uttar Pradesh had one undertrial for every two convicts; now the ratio is completely skewed, with seven undertrials for every convict, says a study by the Indian Institute of Planning and Management. Citing a report in 2002, it said many jails are overcrowded beyond imagination. In Gopalganj, the home constituency of the current Bihar chief minister, there are 650 inmates in a jailhouse built for 50. In the Gaya sub-jail, there are 500 occupying a jail meant for 50. In the constituency of railway minister Lalu Prasad Yadav, the jails look like unreserved second-class compartments: there are 1,300 prisoners against a capacity of just 310.
Delhi’s Tihar jail has about 13,000 occupants against a capacity of 5,200; 80% of them are undertrials, says Tihar jail spokesman Sunil Gupta.

Half of them are poor people – most of them from Bihar, Uttar Pradesh and other northern states - who are in jail because they cannot provide a local surety. Most undertrials continue to languish in prison because they cannot afford bail.

The problem is as old as the hills, but the government has done nothing about it. “The government just sets up committees, gets their report, and thinks the job is over,” says justice (retd) Rajinder Sachar. “Years ago the Law Commission said, if it is an ordinary case, don’t arrest. If it is a minor offence which can attract only six months of punishment, there is no need to arrest the person. It provided #statistics jail-wise about people behind bars for such offences,” he said. Nothing has been done so far to change this.

Instead, people are arrested and put behind bars for a brawl, or for taking part in a procession, for violations of Section 144 and the like. According to one human rights group, the majority of court hearings are also ineffective and they end with merely another date being given. A survey by the Commonwealth Human Rights Initiative, which analysed 150 cases in a Delhi court, found that 68% of the hearings were ineffective - either no proceedings were held or the purpose for holding the hearing was not served. The absence of witnesses impeded another 15% of hearings, while the absence of the accused stymied a further 10%.

The Law Commission also pointed out the shortage of judges. “In India, there are 10 judges for a million people. In countries like the US, they have a hundred,” said Justice Sachar. Moreover, many of the existing posts are lying vacant. “It is sheer bad governance,” he said.

If the system condemns so many to prison, it also does not provide enough prisons for them. Says prison expert and present director general of the Bureau of Police Research and Development Kiran Bedi: “The first problem is of structure. We do not have enough prisons.

Money for building prisons has to come from plan funds. This is the job of states and they claim they do not have enough funds.”

Prisons are not a priority in planning. They are not even a priority for law-making. “We still follow the Prisons Act of 1894,” Bedi points out. There have been many reports of committees and commissions, but they are not put in the public domain, discussed or debated. They have to be either rejected or accepted and implemented, but nothing is done, says Bedi.

Every reform has come through court orders, but even these are not always followed and no one files for contempt, no one is hauled up for contempt, she adds. At Tihar, jail reforms followed from an order by justice Krishna Iyer. But other jails did not implement it.