Research Project: Prison Reforms and Undertrial Prisoners

Submitted By:

Aman Chowdary Gutta

3 BA LLB “A.” (2020-2025)
School of Law, Christ (Deemed to be University)

Submitted To:

All India Law Students Federation (NGO)

And
Law Internships (An Online Law School)

Submission Date: Sept, 9th 2021.

Table of Contents
Abstract..................................................................................................................................2
Section 1.0 What does Overcrowding of prison mean?............................................................3
Section 1.1 Causes of overcrowding in prisons........................................................................3
Section 1.2 Measures to overcome the problem of Overcrowding of prisons are......................5
Section 2. 0 Necessity and importance of legal Aid for undertrial prisoners.............................7
Section 2.1 Why is legal assistance critical in India.................................................................7
Section 2.3 Legislation governing legal aid of prisoners in India.............................................8
Section 2.4 Conclusion............................................................................................................9
Section 3.0 Implementation of section 436A of CrPC..............................................................9
Section 3.1 Case laws related to section 436A of CrPC..........................................................11
Section 4.0 Prison Reforms Recommendations......................................................................13
References............................................................................................................................13

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Abstract

The administration of prisons has been a significant issue in India's history for a

very long time. However, it was not until the twentieth century that India

recognized it as a significant issue. The Universal Declaration of Human Rights,

United Nations standard Rules for prisons Act, 1955, The International Covenant

on Civil and Political Rights, 1979, and, The Indian prisons act, 1894, etc. were

some of the notable legislation ratified by India to highlight the problems faced by

prisoners and to protect their rights. Although the above said provisions were

implemented by the government, they failed to address the problems of prisoners.

Overcrowding, prolonged detention of undertrials, deplorable living conditions, a

lack of staff and inadequate training, corruption and extortion, and insufficient

social reintegration, poor spending on healthcare and welfare, lack of legal aid and

allegations of indifferent and even inhuman treatment of prison staff, etc. were the

common problems of Prisoners in India. For example, in a report on prison

statistics released by the National Criminal Records Bureau in 2019, 4,78,600

inmates were lodged in various prisons across India. They had a collective capacity

to house only about 4,03,700 inmates. This implies that the number of prisoners

was 118.5% of the prison capacity, the highest since 2010. The current research

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project aims to answer three key questions about India's prisons and prisoners. 1)

Examining India's prison overcrowding problem, 2) The importance and necessity

of legal aid for undertrial detainees, and 3) the implementation of Section 436a of

the CRPC. Consequently, the paper provides some critical recommendations that

are needed to be enforced by governments. Like legislative changes, administrative

changes, etc. For better administration of prisons in the country.

Keywords: Prisons, Overcrowding, Undertrial, Legal aid, Criminal Procedure

Code

Section 1.0 What does Overcrowding of prison mean?

When the jail’s population goes past its advised limit of convenience, it is known

as Overcrowding. Overcrowding in Prisons is an essential human rights issue as it

brings about the weakening of the general living states of the prisoners. For

example, there were 8500 detainees in the Tihar Jail of Delhi in 1995, against the

2500 people.

Section 1.1 Causes of overcrowding in prisons.

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1. Shortage of adequate accommodation: The number of prisoners is growing

every year, and the government provides no new additional space for their

accommodation, so overcrowding in prisons is inevitable. However, as appealing

as it may seem, building additional capacity and supporting facilities has proved to

be a generally ineffective strategy for addressing overcrowding. Evidence shows

that as long as the shortcomings in the criminal justice system and criminal justice

policies are not addressed to rationalize the inflow of prisoners and crime

prevention measures are not implemented, new prisons will rapidly fill and will not

provide a sustainable solution the challenges of prison overcrowding.

2. Socio economic and political factors: The majority of inmates come from

economically and socially disadvantaged backgrounds around the world. Most are

poor, illiterate, or have had limited education, and have faced unemployment and a

lack of housing, which may have contributed to family disintegration, drug and

alcohol abuse, and other negative consequences of their socioeconomic

marginalization. Unless adequate support systems are in place, such circumstances

and dependencies can contribute to individuals' encounters with the criminal

justice system.

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3. Obstacles and delays in accessing Justice: In many countries minimum

guarantees set out in international treaties and standards are not provided to those

who come in contact with the criminal justice system, which can lead to arbitrary

arrests, prolonged pre-trial detention and unfair trials that result in the

imprisonment of innocent people or to excessively harsh sentences. Socially and

economically marginalized groups, rural populations in developing countries and

particular groups who experience multiple layers of discrimination in all spheres of

life, such as minority groups and women, are those most affected.

Excessive pre-trial Detention, Punitive Criminal Justice policies, Drug control

policies, Inappropriate use of Imprisonment, Inefficient measures to promote social

Integration, etc. are some of the main causes of Prison overcrowding in India.

Section 1.2 Measures to overcome the problem of Overcrowding of prisons are

1. Fair Social policies and Crime prevention: Governments should develop

comprehensive national strategies that are evidence-based and which foresee an

alternative response to crime, with imprisonment being seen as a measure of last

resort in line with international standards. Access to education, fair and supportive

social policies, strategies to increase employment, crime prevention measures and

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support to vulnerable groups in the community are recognized as relevant elements

of such strategies. Good practice also includes collaboration and cooperation

between relevant ministries and departments, other key state agencies and civil

society groups.

2. Restricting the Use of Life sentences: International and regional bodies

encourage the restriction of life imprisonment. A Criminal Justice Branch (UNOV)

report on Life Imprisonment recommended that states establish a penal policy

which, inter alia: • Ensures that life sentences are only imposed on offenders who

have committed the most serious crimes and only when strictly necessary for the

protection of society.

3 Increasing Prison capacity: A key part of any technique to decrease

overcrowding in jail is a jail development program that gives jail frameworks the

ability to house guilty parties in protected and altruistic conditions. In numerous

nations, these plans are either non-existent or have fallen casualty to spending

imperatives or higher need issues.

Building the capacity of Criminal Justice actors, improving transparency and

accountability, Legal access and legal empowerment, Reducing Pre-trial detention,

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Alternatives to Imprisonment, etc are some of the ways to reduce overcrowding of

prisons.

Section 2. 0 Necessity and importance of legal Aid for undertrial prisoners 

The word "legal aid" refers to legal representation supplied to individuals who

cannot pay it in order to avert injustice. According to Justice P.N. Bhagwati, legal

Aid entails structuring society in such a way that the mission of administering

justice is easily accessible and not out of reach of those who require its

enforcement, i.e. the poor, illiterate, and even prisoners should be able to approach

the courts. Their ignorance and poverty should not be an impediment to obtaining

justice from the court. Legal Aid should be offered to everyone who lacks access to

the court system. For the purpose of providing legal Aid, there are Legal Services

Authorities that, after determining an applicant's eligibility and the existence of a

prima facie case in his favour, provide him with counsel at the expense of the

State, pay the required Court Fee, and incur all incidental costs associated with the

case. Once legal assistance is obtained, the person receiving it is not required to

spend anything on the litigation once a Legal Services Authority backs it.

Section 2.1 Why is legal assistance critical in India

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Although legal Aid is a fundamental right guaranteed to all citizens, convicts are

denied while imprisoned due to a lack of legal support. Only 20% of the prison

population are convicted felons, while the others are awaiting trial. Thousands of

impoverished people, including Dalits, Muslims, women, and minors, languish in

jails and police cells without access to due process. Women with children and

persons who are mentally ill are among the most vulnerable categories. According

to published figures, 1,400 children under the age of five are incarcerated with

their moms.

The fact that about 80% of undertrials are imprisoned demonstrates how poorly the

law is implemented in India in terms of providing legal Aid. Many of them would

have been acquitted if they had received adequate legal representation, and the

number of undertrials would have been significantly lower. As a result, legal Aid is

critical to sustaining the rule of law in the country.

Section 2.3 Legislation governing legal aid of prisoners in India 

Article 39A of the Indian Constitution imposes a duty on States to ensure that the

legal system operates on an equal opportunity basis and makes it mandatory, in

particular, to provide free legal Aid through appropriate legislation or schemes or

in any other way to ensure that no citizen's opportunity to secure justice is denied

due to economic or other disadvantage. The purpose of this provision is to advance

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equality in the administration of justice. While Article 39A is a directive concept, it

is enforceable pursuant to the Legal Service Authority Act, 1987.

Sec. 12 and Sec. 13 of this Act are two critical provisions that discuss the

entitlement to legal services.

Section 2.4 Conclusion

Undertrial detainees constitute the bulk of convicts in India, and their numbers

continue to grow each year. Their concerns are well-documented and well-known

by the State. Numerous judgments have recognized the difficulties and injustice of

undertrials being imprisoned indefinitely. Numerous adjustments to statutory

requirements have been introduced to help reduce indiscriminate arrests and to

allow for personal bail release. However, despite stated reforms, the problem

persists.

This is due to a disconnect between the legal position and its real application.

While the issue has been appropriately identified, it persists as a result of the

insufficient implementation of laws, reforms, and judicial judgements. Thus, in

order to effect significant change, we should prioritise the proper execution of legal

Aid and reforms over the introduction of novel ideas.

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Section 3.0 Implementation of section 436A of CrPC 

Section 436-A of the Code of Criminal Procedure (CrPC) was enacted with the

best interests of under-trial detainees in mind. The goal of the new provision was to

protect the rights of people who have been imprisoned for long periods of time

while awaiting an investigation, inquiry, or trial. In many cases, under-trial

detainees were held for long periods of time, in violation of the principle of

"presumption of innocence until proven guilty."

Section 436A CrPC states that where a person has, during the period of

investigation, inquiry or trial under the CrPC of an offence under any law (not

being an offence for which the punishment of death has been specified as one of

the punishments under that law) undergone detention for a period extending up to

one-half of the maximum period of imprisonment specified for that offence under

that law, he shall be released by the Court on his personal bond with or without

sureties.’

You can be considered for release under section 436A CrPC, if you have;

 Not been accused of an offence punishable with death sentence, and served one

half of the maximum period of imprisonment prescribed for the offence for which

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you are accused. For example, suppose you've been in prison for ten years or more

and are accused of dacoity under section 395 of the IPC. You qualify for bail under

section 436A of the Criminal Procedure Code.

Note: Under section 57 I.P.C., where the maximum penalty is life imprisonment,

the half-term is ten years.

After hearing the public prosecutor, the court may: Order the individual released

on personal bond with or without sureties; Order the person to be set free on bail;

or Order extended detention, after noting the reasons in writing. 

Note No person may be held for more than the maximum period of imprisonment

specified for the offence

 Additionally, the explanatory provision adds – In determining the time of custody

for purposes of granting bail under this section, the period of detention incurred as

a result of the accused's delay in proceeding shall be excluded.

Section 3.1 Case laws related to section 436A of CrPC 

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In a series of decisions, the Supreme Court and High Courts have stated that a

quick trial is a basic right of an accused under Article 21 of the Indian

Constitution, and that withholding such a right results in bail.

Despite the fact that the right to bail under the provision is not absolute, may the

courts deny inmates relief by delving into the merits of the case?

In Bhim Singh v. Union of India, a three-judge Supreme Court bench ordered the

Jurisdictional Magistrates/Sessions Judges to hold one sitting per week in each

jail/prison for two months to identify under-trial prisoners who had completed half

of the maximum term; or maximum term of imprisonment stipulated for the

offence – and pass an appropriate order to release them on bail. The bench also

directed that all High Courts in the country guarantee that the judgement be

followed and that a report be sent to the Supreme Court's Secretary without delay.

It would not be out of place to say that much prior to the provision coming in

existence, the Supreme Court had expressed concerns with regard to persons

languishing in jail for long periods of time. In Hussainara Khatoon v. Home

Secretary, State of Bihar, Justice Bhagwati, speaking for the Supreme Court,

recognized ‘speedy trial’ as a fundamental right of an accused and anxiously

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directed the State to take steps for a positive approach on enforcing this

fundamental right.

In Supreme Court Legal Aid Committee v. Union of India, the Supreme Court,

relying on Hussainara Khatoon (supra) directed the release of prisoners charged

under the Narcotic Drugs and Psychotropic Act after completion of one half of the

maximum term prescribed under the Act. A.M. Ahmadi, J. (speaking for the Court)

directed the same in an Article 32 petition, after taking into account the non

obstante provision of Section 37 of the Act which imposed the rigours of twin

conditions for release on bail.

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Section 4.0 Prison Reforms Recommendations

Despite the fact that various bodies have studied the problems in Indian prisons

and laws have been enacted to improve jail conditions, it is undeniable that our

prisons are plagued by numerous issues. In many cases, inmates emerge from

prison as hardened criminals rather than reformed wrongdoers eager to participate

in mainstream social processes. Expert counselling programmes are needed to

strengthen the emphasis on the correctional aspect. The prison staff's mindset must

change. Prison administration must be marked by discipline and a respect for

inmates' human rights. It's not just the prison buildings that need to be changed; it's

also what happens inside them. Apart from improving their living conditions, the

focus should be on the prisoners' human rights.

References
1) https://iasgoogle.com/protecting-prisoners-on-overcrowding-of-prisons/

2) https://thelawblog.in/2020/06/19/right-to-legal-aid-in-india-a-humanitarian-approach/

3) https://www.scconline.com/blog/post/tag/section-436-a-crpc/

4) https://www.humanrightsinitiative.org/publications/prisons/section_436_crpc.pdf

5) https://www.thehindu.com/opinion/lead/freeing-the-undertrial/article6432209.ece

6) https://www.ijlsi.com/wp-content/uploads/Major-Problems-of-Prison-Administration-in-India.pdf

7) https://www.hrw.org/sites/default/files/reports/INDIA914.pdf

8) https://blog.forumias.com/prison-reforms-in-india-21st-november-2020/

9) http://parliamentlibraryindia.nic.in/writereaddata/Library/Reference%20Notes/Prison_reforms_in_India.pdf

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 10) https://www.hindustantimes.com/india-news/prison-overcrowding-in-2019-highest-in-10-years/story-

Mm8VGVG0J12zFvqC9rRFZJ.html

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