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Justice Under Trial: a Study of Pre-Trial Detention in India 2 Justice Under Trial: a Study of Pre-Trial Detention in India

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Justice Under Trial: a Study of Pre-Trial Detention in India 2 Justice Under Trial: a Study of Pre-Trial Detention in India JUSTICE UNDER TRIAL: A STUDY OF PRE-TRIAL DETENTION IN INDIA 2 JUSTICE UNDER TRIAL: A STUDY OF PRE-TRIAL DETENTION IN INDIA Amnesty International India is part of the Amnesty International global human rights movement. Amnesty International India seeks to protect and promote the human rights of everyone in India. Our vision is for every person in India to enjoy all the rights enshrined in the Universal Declaration of Human Rights, other international human rights standards and the Constitution of India. We are independent of any government, political ideology, economic interest or religion, and are funded mainly by contributions from individual supporters. First published in 2017 by Amnesty International India #235, 13th Cross, Indira Nagar, 2nd Stage, Bengaluru – 560038, Karnataka, India © Amnesty International India Original language: English Printed by Amnesty International India. Except where otherwise noted, content in this document is licensed under a Creative Commons (attribution, non-commercial, no derivatives, international 4.0) licence. https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode Where material is attributed to a copyright owner other than Amnesty International India, this material is not subject to the Creative Commons licence. Report Infographics: How India Lives, a database and search engine for public data www.howindialives.com Sketches: Bonzer Muivah Front & Back Cover Sketches: Arun Ferreira Designer: Mohammed Sajjad JUSTICE UNDER TRIAL: A STUDY OF PRE-TRIAL DETENTION IN INDIA 3 I was then produced before a magistrate. As all law students know, this measure has been introduced into legal procedure to give detenues the opportunity to complain about custodial torture- something I could establish quite easily since my face was swollen,ears bleeding and soles so sore that it was impossible to walk. But from the deliberations in court, I gathered that the police had already accounted for injuries in the story they'd concocted about my arrest. In their version I had fought hard with the police to try to avoid capture." Arun Ferreira, Colours of the Cage 4 JUSTICE UNDER TRIAL: A STUDY OF PRE-TRIAL DETENTION IN INDIA BACKGROUND India has one of the highest undertrial populations in the world. As of December 2015, 67% of prisoners in India’s prisons were ‘undertrials’ – people who were awaiting trial or whose trials were still ongoing, and who have not been convicted.1 In other words, there are twice as many undertrials in India’s prisons as there are convicts. Figure 1 below shows the state-wise population of undertrials and prison occupancy rates. Figure No. 1 State/Union Number of Number of Occupancy Territories Undertrials Prisons Rate Andhra Pradesh 2737 11 88.9 Arunachal Pradesh 136 8 86.8 Andaman & Nicobar 72 0 40 Assam 5476 28 109.7 Bihar 20372 38 75.2 Chandigarh 339 1 61.4 Chhattisgarh 7738 16 233.9 Dadra & Nagar Haveli 0 0 276.7 Daman & Diu 0 0 28.8 Delhi 10465 8 226.9 Goa 88 1 38.6 Gujarat 5405 11 95.5 Haryana 10489 19 109.3 Himachal Pradesh 579 4 110.7 Haryana 10489 19 109.3 Jammu & Kashmir 1783 12 77.9 Jharkhand 12071 22 114.3 Karnataka 7829 27 95.9 Kerala 2388 14 118.3 Lakshwadweep 0 0 37.5 Madhya Pradesh 16121 50 139.8 Maharashtra 21227 37 112.8 Manipur 533 4 67.1 Meghalaya 862 4 177.9 Mizoram 608 7 94.9 Nagaland 390 11 33.8 Odisha 5144 14 88.6 Puducherry 91 1 45.9 Punjab 12016 16 117.8 Rajasthan 10871 33 102.4 Sikkim 140 2 99.2 Tamil Nadu 5020 18 63.6 Telangana 2732 10 87.8 Tripura 256 3 47.8 Uttar Pradesh 62203 62 168.8 Uttarakhand 1316 8 136.4 West Bengal 10673 19 102.9 1. Ministry of Home Affairs, National Crime Records Bureau 2015, 2016, Available at http://ncrb.nic.in/StatPublications/PSI/Prison2015/PrisonStat2015.htm (hereinafter: PSI 2015) JUSTICE UNDER TRIAL: A STUDY OF PRE-TRIAL DETENTION IN INDIA 5 Despite executive guidelines, legal reforms, and Supreme Court judgments, the proportion of undertrials in prison population has stubbornly hovered around this level over the last decade. Figure No. 2 Proportion of undertrials in Indian prison population % of undertrials in overall prison population 67.6 66.2 65.7 66.6 67.0 66.4 65.1 64.7 66.2 67.6 67.2 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 Source: National Crime Records Bureau India’s undertrial population is estimated to be the 18th highest in the world and the third highest in Asia.2 In the US, which is estimated to have the highest incarceration rate in the world, only 20% of prisoners are undertrials.3 India’s undertrial population has a disproportionate number of Muslims, Dalits and Adivasis. About 53% of undertrials are from these communities, which make up 39% share of the population of India. 29% of undertrials are not formally literate, while 42% had not completed secondary education.4 A quarter of all undertrials have been in prison for more than a year.5 Most prisons in India are overcrowded, partly as a result of excessive undertrial detention. The average occupancy rate in Indian prisons is 114%, and is as high as 233.9% in states such as Chhattisgarh. 2. International Centre for Prison Studies, Highest to Lowest - Pre-trial detainees / remand prisoners, Available at http://www.prisonstudies.org/highest-to-lowest/pre-trial- detainees?field_region_taxonomy_tid=All 3. W. Dobbie et al., The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, 2016, Available at https:// scholar.princeton.edu/sites/default/files/wdobbie/files/dgy_bail_0.pdf 4. PSI 2015. 5. PSI 2015. 6 JUSTICE UNDER TRIAL: A STUDY OF PRE-TRIAL DETENTION IN INDIA All detainees have a right to trial within a reasonable time or to aid provided, and (d) adherence to guidelines on undertrial release. Prolonged undertrial detention can violate their rights detention issued by the Union Home Ministry in 2005.6 In to liberty and fair trial, and adversely impact their lives and addition, researchers interviewed undertrial prisoners at the livelihood. The overuse of undertrial detention effectively ends Bengaluru Central Prison, legal aid lawyers, public prosecutors, up punishing people before they are convicted, and makes a academics, and civil society organizations. mockery of their right to be presumed innocent until proven guilty. Prolonged undertrial detention can also increase the risk While several prisons did not respond to the RTI applications, of torture or other ill-treatment. the responses from those that did revealed major failures in the treatment of undertrials by the criminal justice system. Under international human rights law, the right to liberty Since states with varying undertrial populations face different requires that deprivation of liberty should always be the challenges, for the purpose of analysis in three of the four exception, and imposed only if it is justified, necessary, sections that follow, states have been classified into ‘large’, reasonable, and proportionate in the circumstances of the case. ‘medium’ and ‘small’, based on their undertrial populations. Undertrial detention may be warranted if there is an assessed Large states have more than 10000 undertrials, medium states risk that an arrested person may, for example, intimidate a have between 2000 and 10000 undertrials and small states witness or tamper with evidence. All possible non-custodial have less than 2000 undertrials. measures, such as bail or the accused giving and undertaking to appear, must be explored by the judicial authority before Safeguards under law to protect undertrials are regularly making a decision to remand the accused person in custody. In ignored across the country. Few prisons appear to know India, however, undertrial detention is more often the rule than how to accurately determine which undertrials are eligible the exception. for release under section 436A. Legal aid lawyers do not visit prisons regularly. A shortage of police escorts leads to Under India’s Constitution, prison management is the thousands of undertrials not being produced in court for their responsibility of state governments. To assess the effectiveness hearings, effectively prolonging their detentions. Home Ministry of various legal safeguards to prevent excessive undertrial guidelines are virtually ignored by many prisons. detention, between 2014 and 2016, Amnesty International India filed nearly 3000 Right to Information applications to State governments and the central government in India have every district and central prison in the country and to various failed to respect the fair trial rights of undertrial prisoners. state government departments. Successive governments have acknowledged the problem of excessive undertrial detention, but have not done enough The applications sought information broadly under four to address it. Unless existing laws and policies are strictly categories: (a) the implementation of section 436A of the enforced, and the legal aid system is reformed, the rights of Code of Criminal Procedure (CrPC) (b) the rate of production of thousands of undertrials will remain at risk. undertrials in court for their hearings (c) the adequacy of legal The laxity with which we throw citizens into prison reflects our lack of appreciation for the tribulations of incarceration; the callousness with which we leave them there reflects our lack of deference for humanity. It also reflects our imprudence when our prisons are bursting at their seams. For the prisoner himself, imprisonment for the purposes of trial is as ignoble as imprisonment on conviction for an offence, since the damning finger and opprobrious eyes of society draw no difference between the two. The plight of the undertrial seems to gain focus only on a solicitous inquiry by this Court, and soon after, quickly fades into the backdrop.
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