This article was written by Shruti Goel a student of Government Law College, Mumbai.
According to ‘Prison Statistic India 2015’ report sixty-seven percent of the people in in India jails are under trial which legally means not guilty and a fourth of which are under detention for more than a year.Many of them have remained in prison for more than the period of their punishment if they were convicted for that crime. But if we take a look on Article 21 of our Constitution, the fundamental right to life and liberty includes the right to a speedy trial. Another legal provision, section 436-A of the Code of Criminal Procedure (CrPC),it directs the release of undertrial detainees, who have been imprisoned for half the maximum sentence they would have received if convicted for the offence they are charged with. Their release is conditional with or without surety of a submitted personal bond. The section does not apply to those who could be sentenced to death or life term. However, if we see the recent statistics this article in our constitution almost seems delusive and futile. Another problem faced by these prisoners is inhuman treatment in jails which also have a phycological effect on them. Also, there are many cases where prisoners are beaten to death by jail authorities.They adopt many inhuman practices to torture the prisoners which includes brutal assault, keeping them nude, forcing them to sign documents in the language unknown to them, isolation in dark or third degree torture. According to the answer by a RTI filed by Naresh Paras, a prisoner dies every 26 hours on average in the different prisons of Uttar Pradesh over the last five years.And this is not only in Uttar Pradesh, the overall average death rate in prison is 375 whereas the average suicidal death rate is 16.9 in India. Moreover, prison population are overcrowded by 150 percent. It results in poor hygiene in jails. However, the situation is grimmer than it is shown on paper. People who suffer the most are poor who are under trials for petty offences mainly because they do not know their rights and do not have access to legal aid.Section 12(1)(g) of the Legal Services Authorities Act (1987) guarantees legal aid where a person is committed to judicial custody but it his hardly implemented. As per Article 22 of our Constitution and Section 50 of Criminal Procedure Code (1973), every person has the right to have an advocate present at time of his arrest. But how many arrestees were able to exercise this right?
There has been no revision of prison laws but some landmark judgments in the past have expanded the horizons of rights of the prisoners. In the case of ‘Hussainara Khatoon vs. State of Bihar’ (1979) AIR 1369, a large number of men, women and children were behind bars for years waiting for their trial in the court of law. The offences with which they were charged were so insignificant, which, if found guilty would not warrant them a punishment for more than few months, and yet they were under trails for periods ranging from 3-10 years. In this case, the Supreme Court gave the guidelines thatevery arrested person be provided free legal aid under Article 39A of our Constitution. In another landmark judgment of Sheela Barse v. Union of India [(1986) 3 SCC 596] case the court directed that surprise visits should be paid to the police lock-ups by a judge of the City court appointed by the Principal judge. And also, urged the setting up of juvenile and remand homes for children in jails. In Mathew Areeparmital and other V. State of Bihar, a large number of people were behind bars for trivial offences without a trial before court. The court directed to release those people. In the case where no proceedings have been taken in regard to accused within three years from date of lodging FIR, the accused should be released under S169 of CrPC.In the case of Sunil Batra(II) V. Delhi Administration the court directed that prisoners can meet their friends and relatives but will be subjected to security checks. There many other landmark judgements which provide the basis for prisoner’s rights. They stay on paper but on ground reality they are never seen. But to protect the rights of people and their believe in the judiciary, court has laid certain requirements to be followed in the case of arrest and police custody which are as follows-
- The police arresting the accused must wear name tags which are clear and visible.
- No one can be arrested unless he or she has been informed of the offences alleged against him/ her
- The police must inform a person interested in the welfare of the detainee which also includes the location of custody
- The police officer carrying the arrest shall prepare a memo of arrest which need to be attested by at least one witness which can be arrestee’s family or someone respectable from the locality and should be countersigned by the arrestee
- Medical examination should be asked by the detainee on arrest which should record all injuries on a written form.
- A woman cannot be arrested after sunset and before sunrise
- A woman can only be searched by woman officer
- Medical examination of woman can only be taken by a woman doctor
- Police must place a won in woman only lock up
- A detainee has the right to send and receive letters
- Person below the age of 18 must be sent to juvenile home only
- A detainee has right to demand free legal aid if his/ her income is below Rs 20000 p.a
- A detainee can complain to Magistrate if not produced within 24 hours of arrest
- A detainee can complain to court if tortured.
A lot of measures need to be madeto ensure that people under trial are provided with speedy trials and are given justice. Because being in jail for the offence they may not have committed may have phycological effect on them after which they might not be able to go back to their normal life. There should be proper implementation of section 436-A of the Code of Criminal Procedure (CrPC). Moreover, legal aid should be provided to poor to ensure a fair chance in the trial. The jail authorities should remember that prisoners are human beings and should be treated like one.