Recently, the Supreme Court of India in Re- Inhuman Conditions in 1382 Prisons [Writ Petition (Civil) No. 406 of 2013] ordered for the appointment of a committee headed by a retired Supreme Court judge to look into issues plaguing the prisons in India. Among other things, the Supreme Court was mainly concerned with overcrowding in prisons, and treatment of women inmates and their children. In the previous hearings of the same matter, the Court had talked about feasibility of establishing more open prisons, functioning of the under-trial review committees, and raised concerns about exclusion of non-officials in the Board of Visitors. Although these developments are important, the Court has over the years failed to address one of the primary issues clogging the criminal justice system in India.
India has one of the highest populations of under-trial prisoners in the world. As highlighted in the news reports, over 53% of these under-trial prisoners belong to politically and socially vulnerable communities such as Muslims, Dalits, and Adivasis. Among other reasons, the intersection of marginalities such as religion, class, caste, sexuality and gender, and one’s interaction with the existing criminal justice mechanism directly affects their access to quality legal aid, leading to hyper incarceration The actual situation on ground shows that the State and dominant groups use law as an instrument to perpetuate discrimination and violence against these marginalised groups, which is a replication and extension of the colonial practice of subjugation. While Muslim men are often at the receiving end of the State-sponsored hatred, other minorities such as Dalits and Adivasis are a target of insidious caste politics disguised as law.
As affirmed through empirical studies, the socio-cultural conditions and perceptions of habitual offenders and criminal behaviour continue to plague institutions like the courts, and police stations which contribute to the creation of a pattern in which these particular sections of the population get targeted. These State institutions do not take into consideration of the vulnerabilities that are pushing them into prisons in the first place. Their deliberate failure to acknowledge the toxic social atmosphere puts these marginalised groups in an even more precarious situation that is, skewed access to ethical legal representation.
Courts on under-trial prisoners problems
An examination of various judgments on the under-trial prisoners and incarceration reveals that although the courts have come up with valuable solutions to protect prisoners’ rights, they are not quite sensitive to the questions of religion, caste, class, gender and sexuality, and how they intersect to create a hostile environment to persons with those identities. Courts have failed to acknowledge how the criminal justice system and prison settings continue to incarcerate millions in the name of reformative justice, with a complete disregard for external elements that are enabling it.
Some of the directions issued by the Supreme Court and various High Courts on this issue includes setting up of Under Trial Review Committees, effective implementation of Section 436 of the Cr.P.C. (Code of Criminal Procedure) and Section 436A of the Cr.P.C. which provides for release of certain under-trial prisoners on personal bonds, empanelment of competent lawyers, speedy trial encompassing within its sweep all its stages, including investigation, inquiry, trial, appeal, revision and re-trial etc. However, these directions have not yielded the expected results. Under Trial Review Committees and legal services authorities are practically dysfunctional. Cases under Section 436A Cr.P.C, that is, under-trials languishing in prisons for more than half the maximum sentence possible, are very few in numbers. There is far greater number of prisoners languishing in prisons for less serious offences who can be released on a personal bond under Section 436 Cr.P.C. The courts are not paying adequate attention to Section 436 Cr.P.C cases, and hence the number of under-trial prisoners continues to remain high. Speedy trial, investigation, appeal etc. seem like a distant dream due to various institutional issues such as incompetent investigation officers, understaffed and overburdened judiciary, lack of transportation facilities for attending court proceedings from prisons, among others.
The way forward
As discussed above, the Courts have mostly dealt with institutional issues that only touch the surface of the under-trial problem. A deeper engagement with how the substantial laws in the country fail to interact with the systemic issues affecting minorities, and the procedural laws inadequacy to deal with different kinds of crimes that require different legal frameworks is lacking. Further, public interest litigation and advocacy efforts have not established an effective link between the structures that perpetuate the victimisation of these communities and mass incarceration in overcrowded prisons.
Acknowledging that the directions of the courts are important to work with, there is an urgent need to reframe our strategies that are sensitive to prisoners’ socio-political and economic vulnerabilities. It is pertinent to look at the United States., as there are many parallels between the criminal justice system in the US and India, and the ways in which marginalised communities are incarcerated in large numbers disproportionate to their actual population. Unlike in India, in the United States there are mass movements such as the Abolition of Prisons, and Black Lives Matter that are agitating on the question of unjust laws and hyper incarceration of minorities.
Moving forward, it is important for social justice advocates to engage at many levels starting from courts to building mass movements that deal with the issue of under-trial prisoners, and prison conditions in a holistic manner. Social movements in India need to broaden their understanding of the prison politics and how the State is actively criminalising the poor, and locking up a large number of marginalised communities in prisons.