By Siddhant Kohli

Prisons in India have long been known to be hotbeds of violence, corruption and sleaze, along with routine institutional abuse and massive as well as systemic human rights violations taking place on a regular basis.

This open secret has received scant and peppered media attention and even more scarce public thought, leaving prisoners from all walks of life languishing in ever worsening conditions as institutional problems of over crowding, lack of adequate funding, and lack of any rehabilitation facilities incapacitate the system to a point of inefficacy.

It is under this diabolical mess that lays the true monster lurking in the facts- that 70.1% of all prisoners in Indian prisons are under trial and their alleged crime has still not been verified in a court of law. These citizens have not been sentenced to prison, their guilt has not been proved, and their alleged crime itself may still be uncertain; yet, their life and liberty is stripped of their backs as they are consigned to live alongside convicted criminals under extremely trying conditions with no recourse faster than our courts (which are infamously slow in their dispensation of justice).

For some of these innocent prisoners, hope is an elusive word.

What hope is left for an innocent prisoner, poor not just in means but also in the favour of our Justice system? | Photo Courtesy: Pixabay

This inordinately high percentage of incarcerated under trials is comparable to countries such as Haiti, Libya, Nigeria, Pakistan, and Bangladesh (Countries with dictators or capricious political set-ups), almost three times that of civilized countries such as the United States and Sweden, and almost seven times that of Japan.

It is truly fascinating that a country considered to be a bastion of individual freedoms, widely lauded as the largest and most vibrant democracy in the world, and one which prides itself on its fight for the underdogs, finds itself on the wrong side of the facts right here at home, and how! With prison population increasing at the rate of roughly 3% a year, and the Courts being bogged down with the ever-increasing case load, the problems plaguing the system are here to stay and perhaps even get worse, with no reprieve in sight.

The Supreme Court has repeatedly held that prisoners by no means stop being humans or citizens, and continue to retain the rights to equality, speech and expression, and life and liberty accorded to them by the Constitution, albeit under confinement. In a huge catena of judgments ranging back from the 1970’s till as recently as last month, the Court has consistently been addressing the problem in its own fashion directing the States and the executive to create guidelines and follow them in the interest of protecting rights of individuals, but so far to limited avail.

A Travesty of Justice

The Court in 2012 consolidated all such cases and released these prisoners on bail, giving them a temporary whiff of fresh air.

A fascinating facet of this problem lies with those poor souls who have spent more time in prison than they would have if they were convicted for the crime they are in prison for. Eg. A person under trial for culpable homicide not amounting to murder, the maximum punishment for which is three years, may be under trial for over five years and would consequently be behind bars for that long, despite his guilt still not being proved! It is almost certain though that with passage of time the status will revert to that before the Court’s decision, unless cogent action is taken to address the problem at its source.

Violation of Fundamental Rights

A second aspect of this problem is in the fundamental right violations of those incarcerated by the State. Keeping aside the obvious violation of keeping a person incarcerated without proving his guilt, restricting his freedom of movement and even speech and expression, the abuse of executive authority by treating under trial prisoners either arbitrarily, unfairly, or worse, cruelly also finds rampant practice in these supposed centres of civic rehabilitation(more on this aspect later). Prison officers are known to extend and withdraw protection to prisoners from fellow inmates for slights express of imagined, and even regularly for extraneous considerations (random inspections of prisons frequently find inmates in possession of banned objects including knives, cell phones, drugs, etc.). In a scenario such as this, what hope is left for an innocent undertrial, poor not just in means but also in the favour of our Justice system?

Overburdened and Sluggish Justice System

The third angle here lies with the justice system. Moving at a snail-like pace with even urgent applications taking months to attain fruition, small problems fester and larger ones go unresolved in any reasonable time. In crimes with punishments exceeding three years, summary trials are not allowed, and the average case, from date of alleged offence to date of final judgment, easily entails a process of ten years, if one is lucky! The cost factor is another aspect of the justice system problem that deserves consideration. While in theory the state provides free legal aid to all those who need it, in practice this is of such poor quality that no real defense is meted out in the office of the public defender. The reasons for this too are the same institutional failures that plague the penitentiary system, namely over crowding, lack of adequate funding in addition to nepotism and lack of transparency. With no access to quality legal aid on one side and an overburdened judiciary on the other, the end of the tunnel for those incarcerated indefinitely seems almost illusionary.

Any person of even limited means hires a lawyer in private practice, to get quality advice and thus, a better result.


The fourth aspect of the problem is with the rehabilitation aspect on incarceration. Prisons developed to keep criminals away from civilized society. Elsewhere in the world, it evolved to seek the reasons behind criminality and thus try to provide a corrective environment to criminals, so that they may become productive members of the society at large. This was done by having proper psychiatrists in prisons to provide emotional support to the incarcerated and thus alleviate the causes that led them to commit the crime in the first place. Some jurisdictions have tried to provide economic rehabilitation by providing vocational skills to inmates, to give them a source of livelihood outside the system and thus dissuade further acts of criminality. India has tried a hubris of all these approaches in its central jails, with limited to no such systems in place in state or district jails. The central jails too have not been successful in plying these programs, with the vocations being taught not keeping up with the times or not providing a sustainable source of livelihood to the prisoners. Significantly, in absence of these provisions, there is also no provision to keep under trials and hardened criminals apart, with white-collar criminals staying with drug dealers and murderers. Without any provision of rehabilitation, this exchange only makes the better criminals worse in the company of the worst from the society, leading to a cumulatively worse lot of people leaving prisons than those entering. Keeping under trials with this prison lot for indefinite periods of time creates a lose-lose situation.

A look at the solutions to this problem would necessarily entail an automatic system of review of all under trial prisoners, considering aspects such as gravity of an offense, time spent behind bars, and separation of convicted felons and under trials, behavior in prison. Most significantly, the speed of the justice system needs to be dialed up to provide not just speedy justice to the victim and the accused, but also to be present as an active deterrent to future offenders. The creation of new prisons with better living conditions, proper facilities, separation of prisoners, vocational and rehabilitation facilities, and importantly to alleviate over crowding is also an essential which needs an immediate influx of funds and thought processes to improve the lot of all those affected.

Siddhant Kohli is currently a third year student of law looking to further a career in International litigation. He is interested in travelling, reading, and golf.

This article was originally published on Spontaneous Order.

Featured Image Source: Med Badr Chemmaoui via Unsplash

Posted by The Indian Economist | For the Curious Mind