Undertrials — accounting for nearly 70 per cent of our prison population — often suffer a fate worse than those convicted. Now, they wait for a recent Supreme Court order directing the release of those who have served half their likely sentence to be implemented

Undertrial (Indian informal): A person who is on trial in a court of law. 

— Oxford English Dictionary

Wake up (6am), counting (6.15am), chai (6.30am), lock up (7am), dalia (9am), lock up (9.30am), lunch (3pm), lock up (4pm), dinner (7pm), lock up (8pm), sleep. Repeat. For a year-and-a-half, this was undertrial Maria’s* routine at Ajmer Central Jail. Charged with criminal conspiracy and the murder of a priest at a local temple, along with three men, she claims she was not at the scene of crime, but at home with her family. Her mother Julia* says, Maria, one of five daughters, “got mixed up with the wrong boy, who, it later turned out, was also married.” Youngest of the 20 inmates in the female ward in jail and ‘Beti’ to most, at 19, Maria says she was “alright ‘inside’, only homesick”. Following her release a few weeks ago, however, she is reluctant to step outside the house. “I tell her, if you haven’t committed a crime, what is there to be ashamed of?” says Julia.

Ashwin Gupta*, an officer with 18 years of experience in the Indian armed forces, was arrested eight years ago in a high-profile case. “We were in [Tihar] jail for six years before a chargesheet was filed… so I’m not even sure [if] I was an ‘undertrial’!” says Gupta. “It was one of the darkest periods of my life and I try not to think of it too much. Despite my background in the forces, I was not mentally prepared for something like this,” he says. “If you are moneyed, you can get privileges inside. Otherwise, even the most basic requests will be turned down.”

Out on bail, both Maria and Gupta have tried to start a meaningful life, but it has been far from easy. “Even if proven innocent, it’s difficult for undertrials to get their old life back or get any kind of respect,” says Sister Mariola Sequeira of the Mission Sisters of Ajmer. Sequeira should know. She has been working with inmates of Ajmer Central Jail for 16 years, counselling and helping them with education, if they are so inclined, or just lending a willing ear. “There’s hardly anyone to hear them out. That’s one of the biggest problems,” she says.

Notwithstanding the challenges of rebuilding life under a free sky, thousands of men and women under custody saw a glimmer of hope following a Supreme Court order of September 2014 allowing undertrials who have served more than half their likely sentence if convicted, to walk out of jail within two months. The Centre too instructed the National Informatics Centre (NIC) to create a database of all undertrials in the country. Nearly five months on, however, the situation remains largely unchanged. (The next SC hearing is on February 3.) India’s undertrials must wait a while longer for freedom.

Criminal disparity

At Ajmer Central Jail, out of 913 prisoners, 439 are undertrials, and four barracks, each with room for about 100, are reserved for them. Strewn with sheets and flimsy quilts, the floor is a tangle of limbs as prisoners sleep within inches of each other. The walls are crowded with graffiti, and lined with posters and framed photographs of gods of every religion.

On the surface, life here for an average convict and an undertrial seems much the same. And yet, there are marked differences between the two. Unlike convicts, for example, undertrials don’t get to work at any of the carpentry or handicraft shops, and while away most of their time under a lone tree in each barrack. They don’t even have uniforms, and make do — sometimes for years on end — with the shirt on their back when they first walked in.

Vasudev Singh, the newly appointed superintendent at Ajmer Central Jail, however, toes the official line, and reminds those who uphold the ‘cause’ of undertrials that not everyone is above blame, and that the law must be allowed to take its course no matter what. Singh says, “It is important to understand the nature of their offence and their backgrounds. It’s not only they who suffer once arrested, but also their families — not to forget those of the victims’.”

In many of India’s megacities as well as second-tier cities like Ajmer, this ‘background’ or the lack of it keeps many undertrials behind bars. In the Indian criminal justice system, in addition to a bail bond, a local surety — a person who takes responsibility for the undertrial to stay in the city during the period of trial — is mandatory. “Most of the time, even when bail is granted, there is no local surety,” says Ajay Verma, an advocate with International Bridges to Justice (IBJ), a legal rights organisation that works pro bono to represent undertrials, apart from providing a host of other legal advocacy services. “Many of them are migrants or jhuggi dwellers, and having no one to come forward [as surety], end up staying in prison for longer.”

Forgotten and forsaken

Prison Statistics India 2013, released by the National Crime Records Bureau (NCRB), is the latest consolidated tome on Indian prisons bursting at their seams. According to the report, the total prison population in the country at the end of 2013 was 4,11,992, of which, 2,78,503 or 67.6 per cent were undertrials. While many of them serve not more than a year in prison, over 20 per cent of undertrials are jailed from a year to more than five years without proven charges. “Once inside, they are forgotten,” says Sequeira, “Many are arrested in petty cases; some even for what they call ‘protective custody’. But since the inmates are largely illiterate, even they don’t know what’s happening, and it takes a long time before someone cares to look into their matter.”

There are various reasons for such institutional ‘forgetfulness’, of course. But the most worrying among them is the fact that certain professionals stand to gain from longer periods of incarceration for undertrials. Ravi Nair, executive director, South Asian Human Rights Documentation Centre (SAHRDC), Delhi, says, “Even though a few attempts were made by the legislature and executive, the legal profession has unfortunately failed to cooperate with them to bring about these changes. This is because in many small towns and in lower courts in cities, the lawyers earn a substantial portion of their keep from tools like bail bonds, and hence don’t want to actively change the status quo.”

Another reason often cited is inordinate delays in the trial procedures. “In other countries, it might take a while for the trial to get going, but once it has, it moves swiftly,” says Nair. “In India, cases are adjourned at the drop of a hat… sometimes rescheduled months later, and all this while the undertrial is imprisoned. Also, many of them are so poor, they cannot afford the bail bonds.”

Take the case of Pooja* at Bhopal Central Jail. Despite an order to release her on bail, Pooja stayed behind bars for eight extra months because her lawyer refused to post bail till he got the ₹200 he was owed.

Justice delayed is…

Over the years, while various announcements and judgements have been made to tackle the ‘undertrial situation’, little has changed on the ground. Despite the landmark verdict by the Supreme Court last year, no state seems to have followed its guidelines, and the Centre’s order is yet to be implemented. “However, such initiatives by the court and the government are welcome. The problem is that there have also been similar initiatives in the past. But they have failed to create sustainable solutions for the problems facing undertrials,” says Divya Iyer, research manager at Amnesty International, India. “The accurate computerisation of prison records across all jails in India will go a long way in effective data management. This will help in the easy and timely identification of undertrials eligible for release as per law.”

Until then they must pay for “a regressive bail law, an anti-poor system, and [culture of] viewing prisoners as mere numbers,” says Aparna Chandra, assistant professor at the National Law University, Delhi. Chandra has been researching criminal justice reforms for the last six years, and believes that greater sensitisation of officials, both in the legal and police systems, is the way to go. She says, “In India, the first step in police procedure is to make an arrest… when it should be the last.”

Prabhakar Sinha, president of the People’s Union for Civil Liberties (PUCL), echoes Chandra’s opinion, and adds that the problem is elementary, really — “Jail should be the exception and bail the rule. Unfortunately, in our country it’s the other way round.”

(*Names have been changed on request.)