The National Crime Records Bureau of the Government of India, in Chapter VI of its report dealing with the number of prisoners undertrial in various prisons across the country, has released some shocking details. It reported that thousands of undertrials had been incarcerated for a period of five years or more, and in fact in states including developed states like Punjab and Delhi, a large number of prisoners were under-trials. In Bihar, 30.4 % of the prisoners incarcerated had not been convicted and yet they languished in jails for years, sometimes for periods longer than the period for which they would have to serve, if convicted.
The figures get even more distressing if one studies the number of prisoners incarcerated for more than one but less than five years in different prisons across India. In Uttar Pradesh and Bihar alone, the number of prisoners detained for a period of between two and five years, without having been convicted of any offence was 7310. The number of such prisoners languishing in other jails in different parts of the country constitutes a figure several times the figure for the two states mentioned above.
Examining the Central Jail (Tihar), some more disquieting figures come to light. In 1993, out of the 7200 prisoners housed in the Central Jail Complex (called the Tihar Jail), only 900 prisoners had actually been convicted of any crime. Seven out of every eight prisoners in Tihar Jail consisted of those who had not been convicted of any offence, which amounts to close to 90% of all inmates! Even more shockingly, out of the 280 women prisoners, only 20 had been convicted! Thus, 260 out of 280 prisoners were languishing in jail when the law presumed them to be innocent. It is difficult to think of a justification for this woeful failing of our criminal justice system, but solutions may be sought, and the first place to which one’s attention is directed is the criminal law in the country, specifically the Criminal Procedure code, which is the backbone of the criminal justice system in the country.
Thus, it is clear that the problem of under-trial prisoners is one of great magnitude. The Indian legal system embraces the principle that a person is innocent unless proven guilty. Thus, unless a person has been convicted by a court, no punishment must be meted out to him. Incarceration, even if the person has not been convicted, is damaging physically and mentally and may irreversibly change the life of the individual socially, financially and emotionally. This detention of under- trials for long periods thus in effect imposes heavy costs on the individual, and in effect is no different from being jailed as a punishment for a crime.
(i) Analysis of Section 167 of the Code of Criminal Procedure and the issue of bail linked to financial ability
Section 57 of the CrPC states that “no police officer can detain in custody a person arrested without warrant for a period longer than under all circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Sec 167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
Sec 167 is needed if the police feel that they cannot complete their investigation within 24 hours, and also have reasons to believe that the accusation against the accused is well founded. The procedure prescribed is that an officer not below the rank of a sub-inspector shall transmit to a judicial magistrate a copy of the entries in the diary, and forward the accused to the same Magistrate.
This magistrate can do one of two things: First, he can, from time to time, authorise the detention of the person for a term not exceeding fifteen days. Secondly, if he cannot try the case, he may forward it to another magistrate who has the jurisdiction, who may authorise the detention of the person for a period for a period not exceeding either ninety days or sixty days (depending on whether the person has committed an offence punishable with death, imprisonment for life, or imprisonment for ten years or more or not).
Justice Pathak in Hussainara Khatoon v. Union of India expressed hope that this provision, which limits the period during which a person may be incarcerated was actually being correctly, and that the judges in lower courts were, in the spirit of the provision, satisfying themselves that there was a cause for incarceration. But the real concern of the Court was with provision for bail which is part of our Code.
The Section states that after the expiration of this period, a person who is prepared to and does furnish bail, shall be released on bail. The explanation to the Section further states that “for the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.
The Supreme Court in Hussainara Khatoon noted the unfair nature of this provision and the unsatisfactory position of this law in this regard. The learned judges noted that there was no mechanism with the Code which “enabled the release, in appropriate cases, of an under-trial prisoner on his bond without sureties and without any monetary obligation”, and urged the government to formulate a specific provision in this regard. Clearly, almost every person would prefer liberty to incarceration and thus would be prepared to furnish bail, but some on account of poverty, will not be able to furnish it. I am thus in agreement with R.S. Pathak J. on this point, as the primary reason for the continued incarceration of a large number of individuals was that they could not furnish the necessary amount to be released on bail, but others, who were in all other respects identical to the person incarcerated and could generate the funds, were not deprived of their personal liberty.
A method which reasonably limits the movement of an under-trial (so as not to subvert the cause of justice) but without incarceration should therefore be provided for all accused persons to avoid the discrimination mentioned above. Another move that is absolutely essential is the deletion of the explanation to this section, which makes it impossible for a person to secure his liberty unless he furnishes a monetary bond.
The provision requiring a person to bear a financial burden to secure his liberty as we have seen, is clearly an infirmity of our law. However, the Supreme Court in Hussainara Khatoon pointed to several areas where protection granted by the statute was not being applied by the police, which we shall now examine.
(ii) Analysis of Section 468 of the CrPC
The first Section examined by the Court was Sec 468 of the Code, which states that for accused persons whose alleged crimes would mandate a punishment, if they were convicted, of
a. A fine only
b. Incarceration for not more than one year
c. Incarceration for more than a year, but not more than three years,
If they were incarcerated for a period of six months and above, or one year and above, or three years and above respectively, no court could take cognizance of the offence.
We must also pay attention to Sec 167(5) of the Code of Criminal Procedure, which provides specific protection to the accused in a case triable by the Magistrate as a Summons Case, and states that if the investigation is not concluded within a period of six months from the date on which the person is arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice prolonged investigation is necessary.
With respect to both provisions, the Court directed the Govt of Bihar to study the profiles of prisoners and release the prisoners whose continued incarceration was violative of the provisions mentioned above. It is indeed unfortunate that the enforcement of the protection due to the prisoners by law could be granted to them only after the highest appellate court directed the government to examine prisoners’ profiles. A suggestion of the present researcher in this regard is to create a mechanism by which the register in every jail containing the offence and the duration already served is checked every two weeks and if any person falls into the categories contained in Sections 167 (5) or 468, the person will be released immediately.
The most outstanding feature of the decision in Hussainara Khatoon is the fact that it enshrined the right to speedy trial as a fundamental right, specifically as part of the right to life under Art 21. This formed the basis for the contention of Mr PP Rao in AR Antulay v. Naik where he argued that it was settled that the right to speedy trial was part of the right to life, which was enshrined in Art 21 of the Constitution.
(iii) Analysis of “Right to speedy trial” as being part of Right to life under Article 21 and Section 482 of the Code of Criminal Procedure
He further argued that to make the right effective, there had to be an outer limit beyond which a person’s trial could not be conducted. It was submitted to the Court that Sec 468 could be used as guidance in placing the limit on the period beyond which the trial of a person could not be conducted, and although Sec 468 clearly applied only to minor offences calling for a punishment of at most three years, Mr Rao argued that the same could be extended to major offences as well.
The Supreme Court importantly held that the core of the right to speedy trial was the protection against incarceration and thus, in the prolongation of a trial, the maximum prejudice was suffered by an individual who had been unjustly incarcerated. But the primary contention which deserves our attention is the contention of the Advocate General in the same case, where he contended that unjustifiably long periods of detention would amount to an abuse of the process of the court and would thus invite judicial action under Sec 482 of the Code.
Section 482 of the CrPC is titled “Saving of the inherent powers of the Court”. It states that nothing in the code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary…, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In Ratilal, it was held that the inherent powers of the High Court preserved under Sec 482 of the CrPC were vested in the High Court by law within the meaning of Art 21 of the Constitution. Therefore, it follows logically from this proposition that the exercise of the power of the Court under Sec 482 can be done if the Court believes that there has been an infringement of the right of an individual under Art 21 of the Constitution, namely the right to life.
We have already seen that in Hussainara Khatoon, it had been held that the right to a Speedy Trial was part of the right to life enshrined in Art 21. Relying on the third Hussainara Khatoon case it was observed that the denial of this “fundamental right to a speedy trial” would constitute a violation of Art 21, and the Court, thus, using its inherent power under Sec 482, could quash the trial pending against the accused. Additionally, relying on Khadra Paharia v. State of Bihar , it was contended that a court, when it encountered a case where the right to a speedy trial had been denied to a person, could use its inherent powers in discharge of its constitutional obligations to give necessary directions to State and Central Governments for the enforcement of these obligations.
(iv) Analysis of Section 309 of the Code of Criminal Procedure
In fact, at this stage, we may make reference to Sec 309 of the CrPC which clearly states that proceedings in a trial had to be completed as expeditiously as possible. Clause 1 states that in every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has begun, states that the same must continue from day to day until all the witnesses have been examined, unless the Court finds the adjournment of the same beyond the following day necessary. Interestingly, it also requires the Magistrate to record reasons as to why an inquiry or trial is being adjourned or postponed, if he finds it both necessary and advisable to do so. Finally, in no event is a Magistrate allowed to remand an accused person to custody under this section for a term exceeding fifteen days at a time. Thus, though the CrPC does not contain express provision enabling a Court to quash a trial, it states unambiguously that proceedings had to be completed without delay.
In S. Gain and Ors. v. Grindlays Bank Ltd of the apex court has held that a period of seven years was bound to result in harassment and abuse of the judicial process. Similarly, in Rakesh Saxena v. State through C.B.I. it was held that any further continuance of the prosecution after lapse of more than six years would amount to an abuse of the process of the Court. In Machander v. State of Hyderabad a period of even five years was held to be unjustifiable, in the facts and circumstances of that case. However, in AR Antulay, the Court did not lay down any specific time period beyond which the court would have the power to quash the criminal proceedings against a person. They thus did not accept the argument raised by Mr PP Rao that the period provided for under Sec 468 should be used to determine the maximum time period in respect of major offences. It is submitted that the Supreme Court decided this proposition correctly.
First, as the Court rightly pointed out, there might be several instances where the delay might be caused by the conduct of the accused himself, with or without mala fide intention. Indeed in the facts in Antulay, the delay had been caused, (the Court held though that there had been no mala fides) by the conduct of the appellant himself. Second, the Court discussed in detail American decisions, particularly decisions of the United States Supreme Court which has laid down in that a speedy trial was a constitutional mandate. However, it is interesting to note that in America, the Sixth Amendment to the United States Constitution expressly guarantees the right to a speedy trial, while in India, the same right has been read by a process of creative interpretation into the constitution. Yet in America, inspite of it being specifically mentioned in their constitution, no fixed outer period or time limit has been set beyond which a trial will be quashed on account of delay. Thus, it is submitted that the judges of the Supreme Court were right when they decided not to put in place any outer time period which would lead to the quashing of criminal charges. Instead, they suggested a case by case examination guided by certain guiding factors, such the length of the delay, the reason for the delay and the prejudice caused during the delay. For example, a person incarcerated for a period of seven years would in almost all cases be given back his liberty and the trial which had been commenced against him will almost always be terminated. It is submitted that this test will thus buttress the protection available to convicts already under Sec 468 of the CrPC.
We have thus seen that a creative interpretation of the Constitution has been used to expand the ambit of the right available under the Code of Criminal Procedure to under-trials. In Sheela Barse (II) v. Union of India , the issue which arose before the Supreme Court was more specific and involved the detention for long periods under trial prisoners who were children below the age of 16. The Court came down very strongly upon this practice, which prevailed in a few states and passed directions to States to discontinue this practice.
Interestingly, they did apply a time limit beyond which the detention of children under-trial would be unjustified, a short period of three months from the date of filing of the complaint or lodging of the First Information Report as the maximum time permissible for investigation and a period of 6 months from the filing of the charge sheet as a reasonable period within which the trial of the child must be completed. (This period was not made applicable to children who had been accused of crimes which called for a punishment of more than seven years). However, they distinguished the previous decisions, specifically Antulay on the ground that those decisions dealt with a different class of people, specifically those who were above the age of 16. It is submitted that although the Supreme Court did overstep its primary function, which is the interpretation of the Constitution by issuing directions to the executive, in this case, their action is justifiable, regard being had to the importance of immediate action on as pressing issue as this.
The same concern with the welfare of the accused will inform the next part of our discussion, which is that of whether under-trials can be handcuffed and if they can, under what circumstances. The Supreme Court, using Secs. 46 and 49 of the Constitution, has declared that handcuffs cannot ordinarily cannot be used on undertrial prisoners. This is discussed in the next part.
(v) An analysis of Secs 46 and 49 of the Code of Criminal Procedure and prevention of inhuman treatment to under-trial prisoners
Sec 46 and Sec 49, it must be remembered, extend general protection to all prisoners and applies to all cases of arrest. However, in the cases we shall be examining, as we have seen, special emphasis has been placed on the problem with using unnecessary force while dealing with under-trial prisoners, particularly with the use of handcuffs. The reason behind this, it is submitted, is that, as we have examined, the incarceration of an individual is psychologically deleterious. This is exacerbated by the use of instruments like handcuffs, and this can be especially damaging to an individual who has not been convicted and may not be guilty of any offence.
Sec 46 of the CrPC limits the circumstances in which, and the extent to which force may be used by a police officer while incarcerating an individual. It states not only that force may not be used while dealing with an accused individual who has, by word or action consented to the arrest, it also states that a police officer can in no event cause the death of an accused not accused of a crime punishable with death or life imprisonment. Sec 49, which is more important for our purposes, gives specific protection to a person in police custody, including prisoners under-trial. It states that “the person arrested shall not be subjected to more restraint than is necessary to prevent his escape”.
In Prem Shankar v. Delhi Administration , Krishna Iyer J., in his inimitable style, examined a plea that inspite of the decision in Sunil Batra v. Delhi Administration undertrials were being subjected to the “mortifying and dehumanizing treatment” of being handcuffed. The plea was sent by means of a telegram to the Supreme Court and exercising its “epistolary jurisdiction”, the Supreme Court took cognizance of the fact that undertrials in Tihar Jail were being compelled to wear handcuffs while being transported to and from the Delhi Courts.
The Supreme Court first made reference to Article 10 of the International Covenant on Civil and Political Rights, which states that “all persons deprived of their personal liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” Additionally, the Court relied on Sunil Batra which had held that the fact that a person had been incarcerated did not mean that he had waived his fundamental rights. Further, the Supreme Court was influenced by (though this does not directly concern us), the fact that Rule 26.22(2) in Chapter 26 of Punjab Police Manual read as follows-
“(2) Better class under-trial prisoners must only be handcuffed when this is regarded as necessary for safe custody. When a better class prisoner is handcuffed for reasons other than those contained in (a), (b) and (c) of Sub-rule (1) the officer responsible shall enter in the Station Diary or other appropriate record his reasons for considering the use of hand-cuffs necessary.” This was held by the Supreme Court to be unconstitutional and violative of the fundamental right to equality guaranteed by the Indian Constitution.
Thus, the same concern with equality which played an important role in the decision in Hussainara Khatoon’s case shaped the decision in this case as well. The Supreme Court ultimately, following the broad interpretation of Art 21, a legacy left to use by the decision in Maneka Gandhi v. Union of India as well as Sec 49 of the Code of Criminal Procedure, held that the only circumstance which validated the “incapacitation by irons” was when there was no other means of preventing the escape of a person, in the circumstances. Although the intention of the Supreme Court in this case was undoubtedly good, it remains flawed in logic. It is absurd to expect the police to read the mind of the prisoner and know for sure that he is likely to escape at that point of time. The test suggested by the Supreme Court fails at the outset as it places an unrealistic and practically unviable burden on the shoulders of the police. Thus, although the Supreme Court’s intention was undeniably good, namely to prevent unreasonable loss of liberty, they wrongly tackled the problem by doing away with an important police safeguard. What the Supreme Court could have done, since its “mandatory direction” in this case is never going to be implemented in practice, was to issue a “recommendatory direction”, which the States would have been under a good faith obligation to follow.
If we must have a mandatory direction to the officials of the State, then the decision in Sunil Batra is more practically viable. In Sunil Batra, it was held that handcuffs could be used when “an under-trial has a credible tendency for violence and escape a humanely graduated degree of “iron” restraint is permissible if — other disciplinary alternatives are unworkable.”
A similar fact situation, based on Sec 49 of the Code of Criminal Procedure, arose in the decision in Citizens for Democracy through its President v. State of Assam and others . There, the now famous Kuldip Nayar had observed that in Assam, several suspected terrorists had been detained using ropes while they were in a hospital undergoing medical treatment. The State, in its defense, argued that during the three years from 1991-94 there had been as many as fifty one cases of escape of terrorists from Police and Judicial custody including thirteen terrorists who escaped from different hospitals in the State. The Supreme Court however held that the law as laid down in the decisions in Sunil Batra and Prem Shankar Shukla were binding on it under Art 141 of the Constitution and the interpretation placed in both those decisions on Art 21 and Sec 49 thus had to be applied in the case before it as well. However, it is submitted that in this case, since the State of Assam had shown the Court a reasonable basis for applying extraordinary measures to suspected terrorists, credence should have been lent to the fears of the State.
The problem of undertrials languishing in our jails is a problem which we have ignored for too long. We as a nation cannot afford to ignore it any longer. In order to tackle the problem, there are a few things that we need to do immediately.
First, we need to relook the entire system by which only people who can afford to furnish the monetary security are released on bail, since this unfairly prejudices the poor.
Second, we need to re-examine the long periods which under-trials serve without being convicted in the context of protective provisions such as Section 468 of the CrPC. As Mr. P.P. Rao argued before the Supreme Court, a time frame has to be put in place so if a person has served more time than he would have if he had been convicted, he should be released. Such a provision should be made, if possible through a constitutional amendment such as they have in the United States in the form of the Tenth Amendment.
Finally, we must also relook the requirements imposed on the police officials. The police currently, after the decision of the Supreme Court in Sunil Batra v. Delhi Administration have a very high burden if they want to handcuff a person. A hybrid mechanism, by which the under-trial is not allowed to escape, and at the same time his dignity is not violated in any manner, must be used to make the job of the police easier. These are the broad conclusions.