CHAPTER VIII

OTHER DETAILS OF PRE-TRIAL DETENTION

8.1 GENERAL REMARKS:

Alarming reports of extortion, theft, house-breaking, theft of gold and

money, chain snatching, murder, murder for gain, fire killing masses, house

structure giving away and burying hundreds of people, honour killing, buses

falling of the road, causing death and injuries to many are a daily affair. Can the

judiciary and police stop this? Denying bail on the ground that the accused is a

danger to the society has not reduced crimes. It is reported that gangs of people

have come to South-India from North-India, East-India and are indulging in

criminal activities. Road accidents are reported every day. It chills everyone to

find innocent people dying on the roads. What have the police done? They grop

in the dark to investigate and book the offenders. What steps are taken in the area

of prevention of crimes? The judiciary can only remain as a silent spectator as the

public. By refusing bails has the judiciary stopped the awful criminal activities?

This study of pre-trial detention is not conclusive but a beginning. What is

said has already been discussed by many but this study is not the replica of what

others said but an independent work based on the materials collected from the

procedural law, statutory laws, the Constitution of India, the Universal Declaration

of Human Rights and the other related laws. As stated above law is simple and the

message in it is by the legislators is to cater to the people of all status. In reality

we find that the simple law is getting complicated in the hands of the authorities

of the criminal justice system. This study is oriented towards the pathetic

conditions of the under trials languishing in prison for days, for months and for

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years for the reasons already discussed in this research. It is noted that the Indian

jails are overcrowded with people who are yet to be tried as to find out whether

they have committed the alleged crime or not. The National Human Rights

Commission in the survey conducted in the year 2002 found that 74% of the

prisoners are under trials. It is not just legal delays but because of the indifference

shown to the prisoners. They are treated as convicts and nobody cares for them

despite the rulings by the apex court and the high courts to consider the sorry plight

of under trial prisoners. This part being conclusion has to give a finding to the nine

research questions raised in this research. The findings are based on materials

available and collected in this research and the data furnished by the Central

Bureau of Crime Records. Before giving the conclusion and suggestions this

research is inclined to bring out the sad functioning of the courts of India.

Pandit Jawaharlal Nehru spoke about the Supreme Court Judges in the

constituent assembly.

“The type of a work the judge does is somewhat different; it is in a sense

less physically tiring. Thus a person normally, if is a judge, does not have to face

storm and fury so much as an administrative officer might have to. But at the

same time it is highly responsible work and in all countries so far as I know the

age limit of a judge is so far higher. It is important that these judges should not

only first rate but should be acknowledged to be the first rate in the country and

of the highest integrity, if necessary people who can stand up against the

executive government87.

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87. Constituent assembly debates volume VIII page -247 by Panditji

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 The power of judicial review under our Constitution is provided by Articles

13, 32 and 226 of the Indian Constitution. In a federal democratic country where

sovereign powers are demarcated between the union and the states, the judicial

review guarantees individual rights and imposing restrictions and thereby ensuring

the smooth functioning of the state. A question arises that when legislative,

executive and judiciary are to uphold the constitution, why judiciary alone should

be entrusted with the work of interpreting and enforcing the constitution.

“Judicial review is undertaken by the courts not out of any desire to tilt

the legislative authority in a crusader spirit but in discharge of a duty plainly laid

upon them by the constitution A. v. U.K 88”

8.2 REMOVAL OF ERRING JUDGES

A judge of the Supreme Court or judge of high court can be removed by

the President of India by the two/third majority of members present at voting in

both the houses of parliament. This is a cumbersome process and ineffective. Some

of the erring judges were made to resign or they were not assigned any work. There

is no punishment except the removal. People may lose faith in the judiciary if the

judges opt for nepotism, favoritism and corruption.

Of late all attempts are made to evolve an effective and legally permissible

procedure for taking action against the erring judges. The need of the hour is the

urgent reform to enforce discipline and to remove the erring judges. The credibility

of the entire judiciary is in jeopardy because of the erring judges.

––––––––––––––
88. A. v. U.K 1952 FCR 597

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 There is also criticism that on the verge of retirement some of the judges

pronounce judgment in favour of government as to get postings even after

retirement.

Under the banner of judicial activism the courts have entertained public

interest litigation. Some of the judgments of Supreme Court displayed judicial

statesmanship.

(a) Adoption of Indian children by foreigner guidelines.

(b) Protecting public property.

(c) Prison reforms.

(d) Direction for release of children detained in prison.

(e) Appointment and transfer of judges.

(f) Welfare of workers involved in construction of projects related to

Asian games.

(g) Direction to curtail the evil of ragging.

(h) Misuse of power to issue ordinance.

(i) Preservation of ecological balance and prevention of pollution.

Judicial activism has its limitation. The decision should not be personal

notions but must be for the welfare of the people. There is a criticism that in the

name of judicial activism the higher judiciary is encroaching upon the powers

entrusted to the other wings of the government, the legislature and the executive.

The supreme court of India through its decisions has distorted the law of

the land given to us by the parliament. Our topic is about the under trials and the

Supreme Court though has given wonderful judgment in favour of under trials,

most of its judgments are against the grant of bails. The Supreme Court has laid

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several conditions in the grant of bail making the subordinate court to refuse bail.

The bails granted by the high courts have been struck down by the Supreme Court.

The Supreme Court has even struck down the grant of suspension of sentence,

pending appeal, granted by the high courts. While so it is highly innovated the

dictum that the court can suspend even the conviction, which is not the intention

of legislation. This decision was given in favour politicians. The Supreme Court

is not above law and they have boundary and they cannot over step. Judicial

activism has limitations. Judicial accountability of higher judiciary means judicial

restraint by the judges. If the higher judiciary acts with judicial restraint it will

regain the faith of the people.

8.3 JUDGE SHORTAGE NOT ONLY CAUSE OF DELAYS

A parliamentary panel will on Thursday hear the views of the Ministry of

law and justice on the delay in filling up vacancies in courts across India. The

Union Law Secretary will present the government’s position on the matter to the

standing Committee on personnel, public grievances, law and justice.

There were 4,432 vacancies of judges in the subordinate courts as of

December 31, 2015. The 24 high courts face a shortage of nearly 450 judges,

nearly three crores of cases are pending in courts across India.

However in an internal note the ministry has already made it clear that the

shortage of judges is not the only reason for the mounting pendency of cases in

India.

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 It said the lack of a proper court management system and frequent

adjournments granted by judges are also contributing to litigation delays. The

note prepared for the Advisory Council of the National Mission for justice

delivery and legal reforms states that linking the problem of litigation pendency

solely to the shortage of judges may not present the complete picture. Apart from

the lack of a court management system and frequent adjournments, the ministry

cited several other contributory reasons: strikes by lawyers, accumulation of first

appeals, indiscriminate use of writ jurisdiction and lack of adequate arrangements

to monitor, track and bunch cases for hearings.

The note comes against the backdrop of a statement by the Chief Justice

of India during a conference back in April where he asked the government to

increase the number of judges from 21,000 to 40,000. He had also pointed out

that the law Commission had recommended in 1987, an increase in the judges

people ratio from 10 judges per 10 lakh people to 50 per 10 lakh people89

8.4 INCARCERATION FOR A LONG PERIOD, NO BAIL.

MarkandeyKatju in Rajesh RanjanYadav V. CBI90 has held:

Ss. 437 and 439 _ Bail to under trials accused after long period of incarceration

(six years). Balancing of right to personal liberty versus interests of

society.Factors to be considered. Nature of offence, conduct of accused in prison,

and when on bail when granted on earlier occasions. Member of Parliament

accused on four occasions. Stage of investigation, trial reached at the point when

bail sought. Held, there is no absolute rule that a long period of incarceration by

itself would entitle an under trial to bail. It would be wholly inappropriate to

grant bail when the investigation and trial are nearly over, and

––––––––––––––
89. The New Indian Express dated 13-10-2016
90. MarkandeyKatju in Rajesh RanjanYadav V. CBI AIR 2007 SC 451

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 allegations against the accused are serious. Further, conduct of appellant-

accused was such that he did not deserve bail. He had deliberately used dilatory

tactics for delaying the trial. Lastly, it is irrelevant that appellant has been M.P

four times. The law is no respecter of persons, and is the same for everyone. Day-

to-day conduct of trial directed for expeditious conclusion thereof however,

directed that no court was to entertain any further bail application by appellant-

accused Constitution of India, Articles 136, 21, 105 and 194.

This appeal under Article 136 of the Constitution was filed against the

impugned judgment and order dated 27-4-2006 of the High Court by which the

appellant’s application for bail was dismissed. The appellant’s bail application had

been rejected earlier on several occasions by the High Court as well as by the

Supreme Court. The last order of the Supreme Court dated 3-10-2005 inter alia

requested the session judge to expedite the trial. If the trial was not completed

within a period of six months from that order, it was left open to the appellant to

renew the bail application. At the time of hearing of this appeal all the prosecution

witnesses had been examined and cross-examined, and only the defence witnesses

remained to be examined.

The appellant submitted that 60/70 defence witnesses were proposed to be

examined and some more defence witnesses on behalf of the other accused were

to be examined. Hence, he submitted that it would take a long time to examine

these witnesses. That he had been in jail for more than six years and hence he

should be released on bail. That if ultimately he was found innocent by the trial

court, he would have undergone a long period of incarceration in jail which would

be violative of Article 21 of the Constitution.

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 The state submitted that the appellant himself was at least partly

responsible for the delay in the conclusion of the trial because most of the

prosecution witnesses were cross-examined by his counsel for several days, mostly

by asking irrelevant questions, and these were deliberate dilatory tactics used for

delaying the trial so that on that basis the appellant could pray for bail.

Dismissing the appeal

Held:

None of the decisions cited by the appellant can be said to have laid down any

absolute and unconditional rule about when bail should be granted by the court and when

it should not. It all depends on the facts and circumstances of each case and it cannot be

said that there is any absolute rule that the mere fact that the under trial accused has

undergone a long period of incarceration by itself would entitle him to be enlarged on

bail. (Paras 10 and 12)

(4) Grounds for bail _ generally

While it is true that Article 21 is of great importance because it enshrines the

fundamental right to individual liberty, but at the same time a balance has to be struck

between the right to individual liberty and the interest of society. No right can be absolute,

and reasonable restrictions can be placed on them. While it is true that one of the

considerations in deciding whether to grant bail to an accused or not is whether he has

been in jail for a long time, the court has also to take into consideration other facts and

circumstances, such as the interest of the society. (Para 16)

It has been stated that the appellant has been a Member of Parliament on four

occasions. This is wholly irrelevant. The law is no respecter of persons, and is the same

for everyone. (Para17)

A perusal of the F.I.R itself shows that it is a triple murder case,

and the incident was committed in broad daylight with sophisticated

223
weapons. It is true that the appellant was not named in the F.I.R, but it has

come in the statement before the magistrate under section 164 Cr. P.C of

one RanjanTiwari that he and other assailants had been hired by the

appellant to commit this ghastly crime. Though no comment is sought to

be made on the veracity or otherwise of the statement of RanjanTiwari and

other witnesses, as it may influence the trial, but looking at the allegations

against the appellant, both in the statement of RanjanTiwari and other

witnesses, on the facts and circumstances of the case, it is clear this is

certainly not a case for grant of bail to the appellant, particularly since the

prosecution witnesses have been examined and now the defence witnesses

alone have to be examined. It would be wholly inappropriate to grant bail

when not only the investigation is over but even the trial is partly over, and

the allegations against the appellant are serious. (Paras 18 and 19)

The appellant’s conduct as recorded in Kalyan Chandra Sarkar

case, (set out in para 13 herein) has been such that he does not deserve bail

and the Supreme Court as of now is not inclined to exercise its discretion

under Article 136 for granting bail to the appellant. (Paras 13 and 20)

It is made clear that no further application for bail will be considered in this case

by any court, as already a large number of bail applications have been rejected earlier,

both by the High Court and the Supreme Court. It is directed that the trial court shall

ensure that the defence witnesses are examined on day-to-day basis in accordance with a

fixed time schedule so that the trial is completed as expeditiously as possible and the

judgment is delivered soon thereafter. (Paras 24 and 25) 90.

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8.5 APPLICATION OF INDIAN EVIDENCE ACT

The Criminal Procedure Code has given extraordinary power to the police

for investigating a case has laid checks under the Indian Evidence Act. The

Evidence Act deals with the relevancy of facts. Under section 24, the Indian

Evidence Act says the confession made by an accused person is irrelevant in a

criminal proceedings if a making of confession appears to the court to have been

caused by any inducement, threat or promise. Section 25, Confession to police

officer not to be proved.Section 26, confession by accused while in custody of

police not to be proved against him. Section 27, how much of information received

from accused may be proved._ Provided that, when any fact is deposed to as

discovered in consequence of information received from a person accused of any

offence, in the custody of a police officer, so much of such information, whether

it amounts to a confession or not, as relates distinctly to the fact thereby

discovered, may be proved.

Section 137 of Evidence Act defines what chief examination is, what cross-

examination is, what re-examination is. Section146, Questions lawful in cross-

examination_ When a witness is cross-examined, he may, in addition to the

questions hereinbefore referred to, be asked any questions which tend_

(1) To test his veracity,

(2) To discover who he is and what is his position in life, or

(3) To shake his credit, by injuring his character, although the answer to such

questions might tend directly or indirectly to criminate him or might

expose or tend directly or indirectly to expose him a penalty or forfeiture:

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 (Provided that in a prosecution for rape or attempt to commit rape, it shall not

be permissible to put questions in the cross-examination of the prosecutrix as to

her general immoral character)

Section 155, Impeaching credit of witness._ The credit of a witness may be

impeached in the following ways by the adverse party, or with the consent of the

court, by the party who calls him: _

(1) By the evidence of persons who testify that they, from their knowledge of

the witness believe him to be unworthy of credit;

(2) By proof that the witness has been bribed, or has (accepted) the offer of a

bribe, or has received any other corrupt inducement to give his evidence;

(3) By proof of former statements inconsistent with any part of his evidence

which is liable to be contradicted;

Explanation._ A witness declaring another witness to be unworthy of credit

may not, upon his examination-in-chief, give reasons for his belief, but he may be

asked his reasons in cross-examination, and the answers which he gives cannot be

a contradicted, though, if they are false, he may afterwards be charged with giving

false evidence.

8.6 INDIAN EVIDENCE ACT AND BAIL

The courts of law should understand that evidence act has no role to play

in bail applications of under trials. The Criminal Procedure Code of 1973 has

defined investigation under section 2(h) as investigation includes all proceedings

under this court for collection of evidence conducted by a police officer. This is

an erroneous definition which misleads the courts of law. Whatever collected by

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the police is only material fact and not evidence. The evidence act defines evidence

under section 3 “Evidence” means and includes

1. All statements which the Court permits or requires to be made before it by

witnesses, in relation to matters of fact under inquiry, such statements are

called oral evidence;

2. (all documents including electronic records produced for the inspection of

the Court),

Such documents are called documentary evidence. So it stands established that

any material fact gets the colour of evidence only when it is produced before the

court of law. The F.I.R, the 161 the confession statements, medical records and

other records collected by the police are all only facts. With the paper produced

by the police the courts of law arriving at a conclusion in bail applications that a

prima facie case is made out is not within the frame work of law. It is not known

who invented these two words prima facie and how it entered into a legal

dictionary. Before the commencement of trial, the courts of law concluding that a

prima facie case is made out is totally illegal and against the basics of criminal

jurisprudence. In many of the bail orders the merits of the case is discussed fully

based on the papers produced by the police. The apex court has often cautioned

that the merits of the case should not be discussed in the bail application. The

yardsticks for grant of or refusal of bail are

(a) whether the accused will flee justice and not available for trial.

(b) whether the accused will not be available before the police during

investigation.

(c) whether he will threaten or tamper the witnesses.

(d) whether he will commit other crimes if he is released on bail.

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 (e) His antecedents are threatening as to make him unfit for bail.

The above guidelines are only lead by the Supreme Court of India. The

public prosecutors will only bring the above factors initially without substantiating

the above allegations. Then the public prosecutors do discuss about the facts of the

case thinking that it is evidence collected by the police.

The evidence act will come into picture in bail application only on the

conclusion of trial and not for under trials for whom the trial has not commenced.

In most of the bail orders the High Courts and Supreme Court repeatedly say that

they have to strike a balance between the liberty of a person and the safety of the

society. It is not the business of the courts of law to take care of a society as it is

the work of the executives and the policemen. The Article 21 of the Constitution

categorically states that no person shall be deprived of his life or personal liberty

except according to procedure by law. In Maneka Gandhi v. Union of India91. The

apex court has held that the procedure established by law should not be arbitrary

and fanciful, it must be just, fair and reasonable.

8.7 THE INDIAN JUDICIARY AND ITS FUNCTIONING

The higher judiciary was occupied by men of integrity and intellect

for the past two decades. Many of the Chief Justice of India only at the time of

retiring speak out that judiciary is fraught with favoritism, corruption and

nepotism. But they have not stated whether due and proper action was initiated

against the erring judicial officer. Bangalore Laptop judicial officers werepopular

––––––––––––––
91. Maneka Gandhi v. Union of India AIR 1978 SC 597

228
for some time, it was followed by Justice Ramasamy episode, Justice P.D.

Dinakaran episode and there were allegation against even the former Chief Justice

of India K.G.Balakrishanan. It is to be highlighted Justice K.G. Balakrishanan

came down to Pondicherry to inaugurate a private law college under the cover of

inaugurating the uncompleted integrated court buildings at Pondicherry. This

integrated court building was to consist of three blocks and it was inaugurated on

the construction of only one block.

The question of judicial appointment has reached the center stage. The

new Govt. has started a process of consultation in relation to two bills, the

constitution amendment bills and the judicial appointment commission bill.

8.8 TRANSPARENCY OF JUDICIARY

Anil B. Diwan the President of Bar Association of India has written an

article making judiciary more transparent92.

Publicity, the soul of justice

The principle of open justice and public trial is essential for the fair

administration of justice. In the celebrated case of Scott V. Scott, observations by

the 19th century philosopher Jeremy Bentham were quoted. “In the darkness of

secrecy, sinister interest and evil in every shape have full swing. Only in

proportion as publicity has place can any of the checks applicable to judicial

injustice operate. Where there is no publicity there is no justice. Publicity is the

very soul of justice. It is the keenest spur to exertion, and surest of all guards

––––––––––––––
92. The Hindu dated 4-08-2014

229
against improbity. It keeps the judge himself while trying under trial.” and “The

security of securities is publicity.”

Our Supreme Court cited, with approval, this passage in the Naresh Sridhar

Mirajkar case and added that “…a trial held, subject to the public scrutiny and

gaze, naturally acts as a check against judicial caprice or vagaries…”

The distinguished former president of the Supreme Court of Israel,

Abaran Barak, in his book, the judge in a Democracy, observed: “… But we are

judges. We demand that others act according to the law. This is also the demand

that we make of ourselves…”

“I view my office as a mission. Judging is not a job. It is a way of life.

Whenever I enter the courtroom, I do so with the deep sense that, as I sit at trial, I

stand on trial.”

Justice Sabyasachi Mukherjee, during the controversy regarding the

impeachment of Justice V. Ramaswami, stated:

“… The Supreme Court must uphold the rule of law. It is, therefore, necessary

that those who uphold the rule of law must live by law and Judges must,, therefore,

be obliged to live according to law…”

The observations in the First Judges Case (S.P. Gupta v. Union of India),

which have not been overruled at this point, support the concept of openness.

Bhagwati J. _ with whom five judges agreed. While overruling the claim of

privilege for non-disclosure of communications relating to appointments and

transfers of judges, observed: “The citizens’ right to know the facts, the true facts,

about the administration of the country is thus one of the pillars of a democratic

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state. And that is why the demand for openness in the government is increasingly

growing in different parts of the world.”

He further observed: “Now, if the secrecy were to be observed in the

functioning of government and the processes of government were to be kept

hidden from public scrutiny, it would tend to promote and encourage oppression,

corruption and misuse or abuse of authority, for it would all the shrouded in the

veil of secrecy without any public accountability.”

To ensure openness and transparency, the proposed constitutional

amendment must embody some key principles and core concepts for guidance and

implementation by the JAC. These would include: transparent criteria for

eligibility as well as for short listing and selection (like age, standing, income,

etc.); a complete and periodically updated database of potential candidates that

includes their qualification, performance, general reputation, etc. and which is

accessible to the public; applications to be invited by nomination/advertisement;

consultation with members of the Bar and Bar organizations; inputs sought from

the public with regard to shortlisted candidates; absolute immunity to citizens,

while giving their inputs in a confidential manner, from laws of contempt and

defamation; reasons for selection to be recorded and disclosed when required, and,

most importantly, a complete record of video/audio of JAC deliberations.

In sum, one does not want a differently constituted appointing authority

operating in secrecy.

Lord Steyn in the House of Lords observed: “The principle of open justice

puts, as has often been said, the judge and all who participate in the trial under

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 intense scrutiny… Informed public debate is necessary about all such matters… It

promotes the value of the rule of law.”

Surely, a judiciary which considers the rule of law a part of its basic

structure must abandon the culture of secrecy that envelops the present appointment

process92.

Yet another shocking news was reported

Judge’s Rape Charge: CJI Seeks MP HC Report93

New Delhi: Chief Justice of India (CJI) R.M. Lodha on Monday termed the

alleged sexual harassment of a senior woman judicial officer by a High Court Judge

“a serious issue” and said action would be taken appropriately. The CJI also sought

a report from the Chief Justice of the Madhya Pradesh HC.

A woman Additional District and Sessions Judge in Gwalior had quit her

job after accusing a Judge of the Gwalior Bench of the MP HC of sexual

harassment, a charge refuted by the accused. A communique from SC Deputy

Registrar Rakesh Sharma said, “With regard to allegations of sexual harassment of

Additional District & Sessions Judge, Gwalior through email has been received in

the Registry, which is being dealt with appropriately.”

Justice Lodha stated that the matter has not come up before him yet, but

the Registry has informed him that it has received emails on the issue.

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92. The Hindu dated 4-08-2014
93. CJI Seeks MP HC Report The New Indian Express on 5th August 2014

232
 One of the allegations against the High Court Judge is that he asked the

complainant to dance “to an item number” at his residence. Describing the charges

as false, the judge in question has written to the Chief Justice of the Madhya Pradesh

HC, stressing, “I am ready to face any probe by the CBI or any other agency.”

Dalits, tribals make 54% of T.N Prisoners94

SC /ST Under trials to benefit most.

Prisoners belonging to Dalit and Tribal communities in the state are

expected to benefit most by the Supreme Court order to release under trial

prisoners languishing in the jails for a long time.

According to the National Crime Record Bureau’s prison statistics India

2012, a total of 7,994 under trial prisoners were lodged a various prisons in the

state. Of them 3,442 prisoners belonging to the Schedule caste and 898 prisoners

to the Schedule Tribes. About 2,879 prisoners are categorized as “others”.

Both the SC and ST prisoners constitute about 54 per cent of the total under

trial prisoners in the state where the combined SC and ST under trial prisoners is

only 35 per cent. Dalits here are being victimized like the African American in the

US who were booked in the false case “ More number of SCs and STs are being

held as under trial in the jails than any other communities, it only shows there is

discrimination in our Penal system” he said.

Human rights activist Professor Kalyani said the police booking undetected

theft cases on tribals communities like Irulas and Kuravars are common in the

state. “I have sent a petition to Chief Minister and Director General of police listing

out names of 32 persons belonging to Irulas against whom multiple false cases

were filed in Villupuram and Cuddalore districts.”

233
 He noted that in one particular case, an Irula man was booked for stealing

15 bikes. “But he did not even know how to drive the bike.” He said.

Though the Criminal Tribes Act was abolished long time ago, the

denotified tribes like Kuravas still suffer from the “Criminal tribes” stigma,

organiser. TN Kurvan Tribal Development Association.

“If a theft happened somewhere, the police used to pick up the innocent

people belonging to Kuruva community affix “Kuruva” before the name of the

accused in media, “he said.

A senior police officer said that no persons were arrested based on their

caste. “Whoever are involved in the crime irrespective of their caste, we will arrest

them and remand them,” the official said, adding that over 2000 under trials were

released from the jails in the prison adalat conducted last Sunday94

Freeing the under trial95

This article is written by SudhirKrishnasamy and Shisir Bali. Dr.

SudhirKrishnasamy is a Professor at Columbia Law School and Shisir Bali is a

Research Associates at AzimPremji University.

On September 4, a Supreme Court bench comprising Justice Joseph, R.F.

Nariman and Chief Justice R.M. Lodha relied on section 436 A of the Criminal

Procedure Code, 1973 (Cr. P.C) to direct all states to release under trials in prison

for more than half the sentence they would serve if convicted within a period of

two months. The Bench went further to direct the Central Government to provide

a road map for “fast-tracking” the entire Criminal justice system- not just certain

classes of cases. Not surprisingly, this order has attracted widespread media
––––––––––––––
94.coverage; some civil
The Deccan Chronicle society organization
dated 11-09-2014 has described it as “inspiring and
95. The Hindu dated 22-09-2014

234
welcome.” Will an activist court and a decisive Union government together solve

the problem of languishing under trials in the next two months?

The Indian debate on the “under trial problem” begins with the empirical claim

that the proportion of under trials to convicts in our prison system is too high. In

2012, under trials comprised 66 per cent of the prison population, and in the period

2001-2010 this rate has on average been a stubborn 67 per cent. Is this high

proportion of under trials normatively or a sigh of a pathological Criminal justice

system? A high under trial proportion in the prison population may be the result

of too many arrests during the investigation and trial process or too few

convictions at the end of trial. India has an exceptionally low rate of incarceration

which is defined as the number of persons in prison per 1, 00,000 population. The

International Centre for prison studies (I.C.P.S) points out that at 30(2012) the

Indian incarceration rate is among the 10 lowest rates in the world. Mali 32% and

the island nation of Comoros 28% are on either side. Our South Asian neighbors

Pakistan– 41%, Bangladesh 42% recorded higher rates of incarceration but similar

percentage of under trials detention Pakistan 66 per cent Bangladesh 68 per cent.

By contrast, the United States displays an exceptionally high incarceration rate

70% in 2012 and a relatively low proportion of pretrial detainees in the prison

population 21 per cent.

In an absolute numbers, in 2013, there were around 2, 49,800 under trials

in India and they formed roughly 70 per cent of the prison population. In the U.S.

in the same year there were more than double that number of remand on-convicted

prisoners 475692. Yet they formed only 21.2 per cent of the prison population.

While there may be scope for a substantive debate about which countries offer the

appropriate comparison to India, there is no doubt that the fact of India’s high

percentage of under trials incarceration must be placed in the context of the

235
relatively small size of its prison population overall. Any effort to identify the

optional or normatively justifiable rate of under trials detention must account for

the pathological failures of the Indian criminal justice system to convict and

imprison despite the overwhelming public concern with the failure of public order

and security. If our conviction rate improves, then the proportion of under trials

will drop taken alone, the high proportion of under trials in India is a sign of a

pathological criminal justice system. Unless we can show that current under trials

detention is for excessively long periods or disproportionately targets the poor and

the marginalized, the proportion by itself is not the core problem that we need to

focus on95.

8.9 OFFENCES AND LENGTH OF DETENTION

The excessive length of under trials detention has been a subject of judicial

media and civil society, concern. Section 436 A was introduced into the Cr. P.C

in 2005 to mandatorily release on bail all under trials who have already served half

the period of their sentence if convicted. The Supreme Court, in its recent order,

and civil society groups have invoked section 436 A of Cr. P.C as the primary

strategy to reduce the under trial population. This strategy would work if under

trials are in fact detained for inordinately long periods of time.

However, the available National Crime Records Bureau ( N.C.R.B ) data

on prison shows that between 2001 and 2010, on average around 40 per cent of

under trials incarcerated in the country spent less than three months in prison; the

largest single category among periods detention. Further, during the same period,

over 60 per cent of under trial on average were detained for less than six months.

If we include the percentage of under trial detained for over six months over 80

per cent of under trials in India spent less than one year in prison during the years

under consideration. The offences for which these under trials are being

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investigated or tried make the futility of a section 436 A strategy apparent. We

conservatively estimate that at least 75 per cent of all under trials between 2001

and 2010 in the country were detained for offences with a maximum punishment

of three years and above and could be detained for up to 18 months under section

436 A. The single largest category of under trials by offence was that of murder,

which accounted for close to 22 percent of all under trials on average each year.

Hence, relatively short periods of under trials detention for an overwhelming

majority of under trials than is commonly assumed, together with the long

sentences attached to the offences under trials are investigated or accused of leads

inevitably to the conclusion that very few under trials may benefit from Section

436 A. The enactment of Section 436 A in 2005 had little impact on the

composition of prison population thereafter. The new enthusiasm to implement

this provision is welcome but is unlikely to be a substantive solution to the “under

trials problem.” If under trials detention numbers are a problem, we must re-

articulate what is the normatively acceptable length of pretrial detention. If we

conclude that the requirement of mandatory release, bearing in few limited

circumstances, is on the filing of a charge sheet within a period of 90 days form

arrest then we are likely to reduce under trials detention numbers significantly 60

percent of under trials. However, without substantive reforms to the investigation

and trial process, early release may further aggravate the pathologically low rates

of conviction and incarceration in the Indian criminal Justice system.

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