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India

Over 76% Pre-trial Detainees In Indian Prisons; 7,128 Spent Over 5 Years Incarcerated

Suhas Chakma, Director of Rights & Risks Analysis Group, asserts that people who are kept undertrial for a long period are mostly poor and illiterate or those arrested under terror charges and those detained as alleged foreigners.

Image used for representative purposes. (Photo: Pixabay)

New Delhi: India is second to Bangladesh among the Commonwealth countries to have the highest share of pre-trial detainees with 76.1 per cent, while Bangladesh has 80 per cent, according to a report titled ‘Guilty Till Proven Innocent?’ by the Commonwealth Human Rights Initiative. At the same time, the NCRB data released in December 2021, shows that the number of undertrial prisoners, who have spent above five years in confinement in India’s prisons were 7,128.

Suhas Chakma, Director of Rights & Risks Analysis Group, asserts that people who are kept undertrial for a long period are mostly poor and illiterate or those arrested under terror charges and those detained as alleged foreigners. “People spend years in detention, decades even, because they are poor or are arrested under terror charges, as such cases take time for conclusion. Those that are detained as alleged foreigners, they just remain in detention with the government of India not taking them up, or the country of origin not accepting them back.”

One of those terror charges is the Unlawful Prevention Activities Act (1967) (UAPA), cited as a draconian law, which contains very stringent provisions for the grant of bail. People charged under it remain incarcerated for years without being found guilty. One such example is of Bashir Ahmad Baba who was charged under the UAPA, after being arrested in Gujarat in February 2010, and remained imprisoned until July of 2021.

More recently, a journalist from Kashmir, Aasif Sultan, who got bail in April of this year after four years of being imprisoned under the UAPA, but was booked under Public Safety Act. This stringent Act, applicable in Kashmir, allows for the authorities to detain an individual for two years without trial.

The NCRB data from 2020 shows that out of those under-trial prisoners who spent above five years in confinement, Uttar Pradesh had the highest number of at 2,877, followed by Delhi with 624.

For those who have spent 3-5 years in confinement as under-trials, UP again took the top spot with 5,248 followed by Maharashtra with 2,338. In total there were 16,603 who had spent those years in prison without being convicted.

Those who had spent from 2-3 years in confinement were 7,504 in UP, followed by Maharashtra with 3,517, and third spot taken closely by West Bengal with 2,898. In total, 29,194 people languished in prisons not yet convicted for their offences for 2-3 years.

The greatest number of foreign undertrials were of Bangladesh nationality with a total of 1,630 undertrials. Those confined were most in the State of West Bengal with a total of 1,183, followed by Maharashtra with 139.

Amongst the under-trials the nationality after Bangladeshis who were the most incarcerated were Nigerians, with a total of 615 in confinement, with the most number in Delhi with 177 followed by Maharashtra with 145.

In Jammu and Kashmir, the data shows that those who were detained for over 5 years as undertrial were 258, between 3-5 years a total of 263 people and those detained between 2-3 years 403.

The National Human Rights Commission had stated that it constantly has been urging the release of undertrial prisoners on bail, if they are entitled to it. “Studies have shown that undertrials are often languishing in jail because they are not produced in court owing to the shortage of police escorts. The position is aggravated by the slow rate of disposal of cases in the courts of law.”

About 400 prisoners in Tihar jail had been granted bail by the courts but could not be released because of their failure to provide sureties. The NHRC accordingly took up this matter with the Tihar Jail authorities as well as the Delhi Legal Aid Board. The latter deputed lawyers to study the cases of these prisoners. The efforts of the jail authorities and the Delhi Legal Aid Board have thus far resulted in the release of nearly 200 prisoners.

Project 39A, under the National Law University, cited in a paper titled ‘State Legal Aid And Undertrials: Are There No Takers?’ that data “with all the accompanying limitations, reveal that in aggregate over a period of 4 years, 2016 to 2019, only 7.91 per cent of the undertrial prisoners admitted into prison utilized the legal aid they were entitled to.”