1

Access to Justice for Undertrial Prisoners: Problems and Solutions

–By R. Sreekumar1

There are altogether too many prisoners waiting trial in Indian prisons. As per the latest
comprehensive statistics2 available on prisons in India, there are 1,93,627 undertrial
prisoners as against 63,975 convicts constituting 71.2% of the total prison population in
India. The range varies from a low of 12.1% in Tamil Nadu to a maximum of 98.7% in
Dadra and Nagar Haveli.

The Constitution of India, the Universal Declaration of Human Rights and the Standard
Minimum Rules for Treatment of Prisoners clearly specify the standards of treatment with
prisoners on trial. But realities in jails transmit an entirely different tune. Let us briefly
examine the realities inside any prison.

- A. Prison violence –
Prisons are often dangerous places for those they hold. Group violence is also endemic and
riots are common. In Sao Paulo, Brazil, on 2nd October 1992, atleast 111 people were killed
and 35 wounded by military police who were called in the House of Detention after a
scuffle broke out between two gangs of prisoners allegedly over payment for marijuana. In
a three day riot and standoff in the Chappra District prison in Bihar towards the end of
March 2002 6 prisoners died in the shootout that occurred when commandos of the Bihar
Military Police were called in to quell the riots. Meek and first time offenders are tortured
and made to do all the menial tasks. Failure to comply sees them sleeping in front of smelly
and overflowing toilets in the night.

- B. Criminalizing effect of a prison –

With hardened criminals being around and in the absence of scientific classification
methods to separate them from others, contamination of first time, circumstantial and
young offenders into full-fledged criminals occurs very frequently. It is an oft given quote
that Prisons are Universities of Crime where people go in as under-graduates and come out
with Ph.Ds. in crime.

- C. Homosexual abuse –
Prisons are institutions that lodge people of same sex. Being removed from their natural
partners, forces the prisoners to look for alternative ways to satisfy their sexual urge. This
often finds vent in homosexual abuses where the young and feeble are targeted. Resistance
from the side of prisoners leads to aggravated violence on them. At times, prisoners are

1 LL.M. [University of Delhi]. Presently working as Project Officer in the Prisons and Human Rights

programme of the CHRI. The author is thankful to his Director Mrs. Maja Daruwala for her comments
and useful inputs.
2 Types of Inmates in Prison Statistics 2000, National Crime Records Bureau, Ministry of Home Affairs,

Government of India at page 21. Referred to hereafter as Prison Statistics 2000. P.S. Figures for the year
2000 are not inclusive of data from the three newly carved states of Chhattisgarh, Jharkhand and
Uttaranchal.
 2

subjected to massive homosexual gang-rapes. Apart from causing severe physical injuries
like the rupture of anus and spreading sexually transmitted diseases including HIV/ AIDS,
it also induces severe trauma in prisoners forcing some of them to commit suicide. If they
do not, they carry a lot of anger and frustration in themselves which they take out on the
next innocent prisoner who gets admitted. Recently the Human Rights Watch, America has
come out with a report titled – No Escape: Male Rape in U.S. Prisons that documents the
prevalence and the traumatic effect of this menace on its victims in the prisons of the United
States of America.

- D. Health problems –
Most of the prisons face problems of overcrowding and shortage of adequate space to lodge
prisoners in safe and healthy conditions. Most of the prisoners found in prisons come from
socio-economically disadvantaged sections of the society where disease, malnutrition and
absence of medical services are prevalent. When such people are cramped in with each
other in unhealthy conditions, infectious and communicable diseases spread easily. A
sample study conducted by the National Human Rights Commission of India in early 1998
revealed that 76% of deaths in Indian prisons were due to the scourge of Tuberculosis.

- E. Mentally ill prisoners –

Though miniscule, mentally ill prisoners constitute another percentage of population,
which is largely ignored and forgotten by both the outside world and those inside.3 But
given the nature of the illness and prevailing social attitudes, they form the most hapless
victims of human rights violations.
The most infamous case in India is that of Ajoy Ghose who spent 37 years in prison, till
November 1999. He was arrested for murdering his brother in 1962. Subsequently he was
certified as insane and after his mother’s death in 1968, nobody came to visit him. Everybody
simply forgot him. While he was in prison, the trial judge and all the witnesses died. His life
was the ultimate vicious circle. He could not be acquitted unless tried. Since he was legally a
lunatic, he could not be tried! In November 1999, some group brought him to the notice of the
Supreme Court and it took the Chief Justice of India to transfer him from the Presidency jail
of Calcutta to the Missionaries of Charity home. Mr. Ghosh’s life is the ultimate sacrifice to
the Indian Justice system. Too many people fall into this coil without recourse or ability to get
out.

Even for a normal person, prolonged incarceration might lead to a mental breakdown, the
atmosphere being such. Many, on the verge of such collapse, do attempt suicide. Sir
Alexander Patterson while giving evidence before the Select Committee in 1930 {quoted at
page 229 of the Royal Commission on Capital Punishment [1949 – 53]} stated – “…I gravely
doubt whether an average man can serve more than ten continuous years in prison without
deterioration.”4

3 Mentally ill prisoners constituted 0.1% of the total prison population for the year ending in 2000. Source:

Prison Statistics 2000 at page 21.

4 Quoted in Preface of Report of the All India Committee on Jail Reforms Vol. I [1980-83], Ministry of Home

Affairs, Government of India at page vi. This reported shall hereafter be referred to as the Mulla
Committee report after the name of its Chairperson – Mr. Justice A.N. Mulla.
 3

- F. Drug abuse –
After Murder, Attempt to murder and other serious anti-personal offences, people booked
under anti-drug laws constitute a substantial percentage of the prison population.5 Being in
prison and cut off from the free world, sees and increased desperation to get the banned
substances to satisfy their addiction to drugs. This also increases the danger of fresh
prisoners being inducted into drug abuse since ‘prison is an environment where there is a
captive, bored, largely depressed population eager for some release from the grim everyday
reality.’6

- H. Effect on the families of prisoners –

Those imprisoned are unable to look after their families. In the absence of the main bread-
winner, the family is many a times forced into destitution with children going astray. This
combined with the social stigmatization and ostracization that they face, leads to
circumstances propelling children towards delinquency and exploitation y others. It is an
inexorable circle. The problems become acute when they belong to the socio-economically
marginalized and exploited sections of the society. The dominant class does not fail and
loose time in taking advantage of this situation to exploit the remaining family members to
the fullest possible extent. This can take the form of rape or forced prostitution of the
prisoner’s wife and/ or his daughters. It is easy to imagine what are we then leading to
from here onwards.

Specific problems faced by Undertrial prisoners and their reasons –

• Their Right to Speedy Trial as recognised by the Supreme Court in Hussainara Khatoon
[I] vs. Home Secretary, Bihar7 is violated due to protracted delays. This delay is due to all
kinds of reasons such as –
o Systemic delays.
o Grossly inadequate number of judges8 and prosecutors.
o Absence or belated service of summons on witnesses.
o Presiding judges proceeding on leave.
o Remands being extended mechanically due to lack of time and patience with the
presiding judge.
o Inadequacy of police personnel and vehicles which prevents the production of all
prisoners on their due dates.
o Many a times, the escorting police personnel merely produces the remand papers in
the courts instead of actually producing the prisoner in front of the magistrate. This
practice is widely reported, notwithstanding the strict requirement of the law in
Section 167[2][b] of the Criminal Procedure Code, 1973 [CrPC] which says that – ‘No

5 In the year 2000, 24.9 and 15.3% convicts and undertrials constituted that segment of the prison
population that was in under the Narcotic Drugs and Psychotropic Substances Act, 1985. Source:
Distribution of Convicts and Undertrials under various Crime heads in Prison Statistics 2000 at pages 23 – 24.
6 Vivien Stern, A Sin Against the Future, [1995] Penguin, London at page 122.
7 (1980) 1 SCC 81.
8 The Judge to population ratio in India is one of the lowest in the world.
 4

Magistrate shall authorize detention in any custody under this section unless the
accused is produced before him.’

The following table highlights the period of detention for the year 20009 –
Period of Detention Number of Percentage of the total undertrial population
Undertrials
Upto 3 months 78,316 40.4
Upto 6 months 43,799 22.6
Upto 1 year 34,419 17.8
Upto 2 years 22,488 11.6
Upto 3 years 9,629 5.0
Upto 5 years 4152 2.1
Above 5 years 824 0.4
Even though the figures say that there are just 824 prisoners awaiting their trial for more
than 5 years, it is not reason for carelessness and apathy. Let us not quickly forget that Ajoy
Ghose was one of them.

• Right to bail is denied even in genuine cases. Even in cases where the prisoner was
charged with bailable offence, they are found to rot in prisons due to exorbitantly high
bail amount. The spirit of the Supreme Court in Moti Ram & others vs. State of Madhya
Pradesh10 is violated constantly. The Law Commission analysed this in detail in its 77th
report on congestion of undertrials in prisons.
• Some of the judges even at the High Court level are not following the guidelines laid
down by the Supreme Court on bail and grant of the same is dependent upon the
attitude of each judge. Standards cannot become prisoners of the whims and fancies of
individuals. Authority is to be exercised with responsibility.
• Large number of persons including women and children are detained under Section 109
of the CrPC for failure to furnish requisite security for keeping good behaviour. The
police usually pick them up “because the number of cases had to be brought up to the
specified figure”.11 The authorities refuse to release them without bail whereas the
standing law on Section 110 says that you cannot ask for bail from such persons, only
the history ticket is required.
• Even today, the order of Dr. A.S. Anand – former Chief Justice of India on holding
Special Courts in Jails for prisoners involved in petty offences and willing to confess to
their guilt is not being implemented at least in Madhya Pradesh. If implemented by the
High Courts and followed judiciously, it can bring lot of succour.
• In the absence of a system, that takes a proactive role in providing legal services to
prisoners their Right to effective Legal Aid is also violated.

9 Period of Detention of Undertrials in Prison Statistics 2000 at page 28.

10 AIR 1978 SC 1594.
11 This was mentioned by no less than one of the most respected stalwarts of the Indian Police – Mr. K.F.

Rustomji. Source: The Undertrials of India, Tour Note No. 15 by Shri K.F. Rustomji – Member, National
Police Commission.
 5

Solutions –

We need not look far. All that needs to be done is to compile the recommendations and
suggestions given by the various expert groups and institutions12 and start implementing
them. Following are some of the major recommendations given till date –

• Undertrial prisoners should be lodged in separate institutions away from convicted

prisoners. There should be proper and scientific classification even among undertrial
prisoners to ensure that contamination of first time and petty offenders into full fledged
and hardened criminals does not take place.
• Under no circumstance should they be put under the charge of convicted prisoners.
• Institutions meant for lodging undertrial prisoners should be as close to the courts as
possible.
• Provisions of Section 167 of the CrPC with regard to the time limit for police
investigation in case of accused undertrial prisoners, should be strictly followed both by
the police and the courts.
• Automatic extension of remands has to stop which are also given merely for the sake of
the convenience of the authorities. Mere convenience of the authorities cannot
supersede the Constitutional guarantees under Article 21.
• All undertrial prisoners should be effectively produced before the presiding magistrates
on the dates of hearing.
• The possibility of producing prisoners at various stages of investigation and trial, in
shifts should be explored.
• Video conferencing between jails and courts should be encouraged and tried in all states
beginning with the big Central jails and then expanding to District and Sub jails.13
• A District level Review Committee consisting of the following should be constituted to
review the cases of undertrial prisoners –
o District Judge [who is also the ex-officio chairperson of the – Chairman
District Legal Services Authority]
o District Magistrate – Member
o District Superintendent of Police – Member
o Public Prosecutor – Member
o Prison Superintendent – Member Secretary
It should be statutory committee and should visit all Central and District prisons in the
district at least once a month and meet every undertrial prisoner present on the day. It
should, thereafter, hold a meeting to review the cases of all undertrial prisoners in the
prisons under its jurisdiction and see that no such prisoner is un-necessarily detained in

12 These include the Mulla Committee in its Chapter on Undertrial and other Unconvicted Prisoners at page
170; Law Commission of India inter alia through its 77th [Delay and Arrears in Trial Courts], 78th
[Congestion of Undertrial prisoners in jails] 120th [Manpower Planning in Judiciary – A Blueprint] and
154th [The Code of Criminal Procedure Volumes I & II] reports; National Human Rights Commission of
India through its Annual Reports for the years 1996 – 1997 and 1998 – 1999 and the Supreme Court
through its judgement in Hussainara Khatoon vs. Home Secretary, Bihar series, other important cases and its
latest judgement titled P. Ramachandra Rao vs. State of Karnataka (2002) 4 SCC 578.
13 Please see Annexure – IA for details.
 6

the prison. Alternatively, prison superintendents/ jailors in-charge of the prison should
send an updated list of all such prisoners to the committee on a regular basis.
Such committees are apparently doing very good work in Tamil Nadu. Source: Mr.
Chaman Lal, Special Rapporteur – National Human Rights Commission, New Delhi.
• A State level Review Committee should also be constituted with the following
composition –
o A Judge of the High Court [who may also be the Chairman of the State – Chairman
Legal Services Authority]
o Home Secretary/ Secretary dealing with prisons in the Secretariat – Member
o Inspector General of Police – Member
o Director of Prosecution – Member
o Inspector General of Prisons – Member Secretary
This should also be a statutory committee and should meet at least once every three
months to review the position of undertrial prisoners in the State as a whole. It should
also sort out problems of coordination among the various departments resulting in
delay in trials.
• The District Magistrate should constitute a committee consisting of representatives from
the local police, judiciary, prosecution, district administration and the prison
department at a fairly high level, to visit the Sub jails under their jurisdiction atleast
once every month and review delay in cases of prisoners if any and adopt suitable
measures.
• Preventive sections of the CrPC, especially Section 109, should be reviewed and
amended suitably to restrict their use only in very genuine cases. The cases of prisoners
being tried under Section 109 should be heard with due promptness and concluded
within 5 months.
• Police functions should be separated into investigation and law and order duties and
sufficient strength be provided to complete investigations on time and avoid inordinate
delays.
• The criminal courts should exercise their available powers under Sections 309, 311 and
258 of the CrPC to effectuate the right to speedy trial. In appropriate cases jurisdiction of
the High Court under Section 482 of the CrPC and Articles 226 and 227 of the
Constitution of India can be invoked seeking appropriate relief or suitable directions to
deal with and prevent delay in cases.
• With undertrial prisoners, adjournments should not be granted unless absolutely
necessary.
• Utilise the existing provision in CrPC for Honorary Judicial Magistrates and use it
imaginatively. Request experienced criminal lawyers to work as part-time judges on a
particular stipulated number of days on the pattern of ‘Recorders’ and ‘Assistant
Recorders’ in the United Kingdom. This should be in synchronization with the scheme
of Fast Track Courts that are running for some time now.14

14 Please see Annexure – IB for details.

 7

• Order of Dr. A.S. Anand – former Chief Justice of India on holding Special Courts in
Jails for prisoners involved in petty offences and willing to confess, should be actively
taken up by the High Courts and implemented in all districts.15
• There should be a progressive and massive Decriminalization of offences so that many
of the wrongs, which are now given the status of crimes, are dealt with as
compoundable tortuous wrongs remediable with a claim for compensation.
• The class of Compoundable offences under the IPC and other laws should be widened.
• Alternatives to imprisonment should be tried out and incorporated in the IPC.16
• Remand orders should be self-limiting and indicate the date on which the undertrial
prisoners would be automatically entitled to apply for bail.
• Computerise the handling of criminal cases and with the help of the National
Informatics Centre, develop programmes that would help in managing pendency and
delay of different types of cases. The High Courts should take an active interest in
helping subordinate courts to speed up cases.
• There should be an immediate increase in the number of judges and magistrates in some
reasonable proportion to the general population. It should be atleast 107 judges per
million of the Indian population.

Bail –
• Certain offences under the IPC, which are at present non-bailable, should be made
bailable and the CrPC should be amended accordingly.
• Offences under other laws punishable with 3 years imprisonment should be made
bailable with due exceptions, where necessitated.
• Amount of bail should not be unreasonably high and arbitrary.
• The CrPC should be amended and the responsibility of proving that releasing a person
on bail might endanger the security of the society, should be put on the prosecution. It
should no longer be left to the whims, fancies, impressions, biases, prejudices and
discretion of the concerned authorities. Let there be more concreteness and objectivity in
its application to give effect to the Objectives of the law on Bail. Otherwise, scrape all
the provisions on bail.
• Accused persons having a settled social life and permanent abode should be released on
personal recognizance. They may further be placed under the supervision of probation
officers, or Gram Panchayats or NGOs recognised by the government for this purpose.
• Magistrates, prosecutors and police personnel should receive training in bail
jurisprudence to sensitise them to differentiate between cases where releasing a person
on bail is not safe and where preference should be given to release certain types of
people on bail.

Provision of legal services –

• Recruit, train and post committed law officers to all jails, in numbers proportionate to
the prison population.

15 Please see Annexure – IC for details.

16 Please see Annexure – ID for details.
 8

• There should be no restriction on the number of interviews sought by undertrial

prisoners for the sake of legal assistance.

We cannot conclude here and assume that if all the recommendations are put into practice,
then we shall be successful in enabling undertrial prisoners to access justice. Unfortunately
there lies our ignorance. The Committee set up by the Home Office of the British
government to review the sentencing framework for England and Wales in its report titled
– Making Punishments Work, notes that –

“An overview of the present framework reveals limitations and problems. The most
compelling of these are the unclear and unpredictable approach to persistent offenders,
who commit a disproportionate amount of crime, and the inability of short prison sentences
(those of less than 12 months) to make any meaningful intervention in the criminal careers
of many of those who receive them. The gradual erosion of the approach set out in the
Criminal Justice Act 1991, with its emphasis on linking punishment to the seriousness of the
offences under sentence, and the resulting muddle, complexity, and lack of clear purpose or
philosophy, are further grounds for reform.”17

Here I would like to bring to the notice of this learned and serious gathering the
opportunity for discussing and accepting a pragmatic proposal. I submit from my own
personal experience and that of experts from world over that our perception of justice has
to necessarily move from retributive and deterrent to Restorative. In the given constraints, I
shall limit its scope in the present paper and briefly introduce the topic in the following
terms.

At the abstract level, “restorative justice is fundamentally concerned with restoring

relationships, with establishing or re-establishing social equality in relationships.”18 At a
more concrete level, restorative justice “involves the victim, the offender, and the
community in a search for solutions which promote repair, reconciliation, and
reassurance.”19

17 Executive Summary in Making Punishments Work. Report of a Review of the Sentencing Framework For
England and Wales [July 2001] Home Office, Britain, at page ii.
18 J.J. Llewellyn and R. Howse, Restorative Justice – A Conceptual Framework (Ottawa: Law Commission of

Canada, 1998) Quoted in May Leung, The Origins of Restorative Justice, at page 2, downloaded from the
website of the Canadian Forum for Civil Justice, Faculty of Law, University of Alberta,
Canada.[http://www.law.ualberta.ca/centers/civilj/fulltext/leung.htm.]. Hereafter referred to as May
Leung, The Origins of Restorative Justice.
19 Howard Zehr, Changing Lenses: A New Focus for Crime and Justice Herald Press, Waterloo, Ontario,

Canada at page 181. Hereafter referred to as Howard Zehr, Changing Lenses. Quoted in May Leung, The
Origins of Restorative Justice, at page 2.
 9

The most basic principles of restorative justice are –

1. Holding the wrongdoer directly accountable for the individual victim and the specific
community affected by the wrong act;
2. Requiring the wrongdoer to take direct responsibility for making "things whole again"
to the degree that this is possible;
3. Providing the victim(s) purposeful access to the courts and correctional processes,
which allows them to assist in shaping the wrongdoers’ obligations; and
4. Encouraging the community to become directly involved in supporting victims, holding
wrongdoers accountable, and providing opportunities for wrongdoers to reintegrate
into the community.20

It scores over the retributive and deterrent forms in many ways. May Leung has
summarized the comparisons made by Howard Zehr of looking at justice through the
Retributive and Restorative lenses in the form of the table reproduced below.21 The
comparisons are as follows –

Retributive Lens Restorative Lens

Blame-fixing central Problem-solving central
Focus on past Focus on future
Needs secondary Needs primary
Battle model; adversarial Dialogue normative
Emphasizes differences Searches for commonalties
Restoration and reparation considered
Imposition of pain considered normative
normative
One social injury added to another Emphasis on repair of social injuries
Harm by offender balanced by harm to
Harm by offender balanced by making right
offender
Focus on offender; victim ignored Victims’ needs central
Victims lack information Victim and offender are key elements
Restitution rare Restitution normal
Victim’s suffering lamented and
Victim’s “truth” secondary
acknowledged
Action from state to offender; offender
Offender given role in solution
passive

20 May Leung, The Origins of Restorative Justice, at page 2.

21 May Leung, The Origins of Restorative Justice, at pages 4 – 6.
 10

Victim, offender, and community roles

State monopoly on response to wrongdoing
recognized
Offender has no responsibility for resolution Offender has responsibility in resolution
Outcomes discourage offender responsibility Responsible behaviour encouraged
Rituals of personal denunciation and
Rituals of lament and reordering
exclusion
Offender denounced Harmful act denounced
Offender’s integration into community
Offender’s ties to community weakened
increased
Offender seen in fragments, offence being
Offender viewed holistically
definitional
Sense of balance through retribution Sense of balance through restitution
Balance righted by raising both victim and
Balance righted by lowering offender
offender
Justice tested by intent and process Justice tested by its “fruits”
Justice as right rules Justice as right relationships
Victim-offender relationships ignored Victim-offender relationships central
Process alienates Process aims at reconciliation
Response based on offender’s past Response based on consequences of
behaviour offender’s behaviour
Repentance and forgiveness discouraged Repentance and forgiveness encouraged
Victim and offender central; professional
Proxy professions are the key actors
help available
Competitive, individualistic values
Mutuality and cooperation encouraged
encouraged
Ignores social, economic, and moral context
Total context relevant
of behaviour
Assumes win-lose outcomes Makes possible win-win outcomes
 11

In the end I would like to conclude this paper with the following submissions –

Firstly, lack of simple improvements and refusal to reform a diseased system is indicative of
lack of political will, vested interest in retaining an essentially damaging and corrupt system;
disrespect for human dignity and for the law laid down. Reform is an indication of the State’s
commitment to upholding the given right of each person in the nation. It is a measure of the
willingness of the state to abide by the principles of its own constitution, laws and the rule of
law.

Secondly, the State may have its financial constraints and its priorities in expenditure, but
as the Supreme Court held in P. Ramachandra Rao vs. State of Karnataka, “‘the law does not
permit any Government to deprive its citizens of constitutional rights on a plea of poverty’
or administrative inability.” As Gandhiji and Pandit Nehru had said in the context of prison
reforms which stands true here also, it must not be thought that these changes will involve
extra expenditure and require a different type of men to work the new system. Additional
expense at this stage will mean economy in the long run.

Let us know that “Wherever combined determination is based on innate goodness…

anything is possible.”22

Thirdly, there is abhorrence in the general circles of the society at the mere mention of
prisoners. For many, they are to be avoided like plague and hence a callous and un-
bothered approach is fine and delay in trial or violation of other rights does not amount to
anything much. Anybody and everybody in prison are there because they have committed
some heinous offence and hence deserve to be punished severely. General members of the
society do not have any responsibility for prisoners. This attitude on part of all concerned
also adds to injustice for undertrial prisoners.

What is not realised is the universal fact that all of us are potential criminals. We too have
committed many immoral or illegal acts. The differences between them and us are that –
• In their case, the potential crossed the threshold of thought into action.
• Some of us have managed to evade the law all this while or ensure that no one ever got
to know about our immoral and illegal acts. That does not give us any moral superiority
over those who have been caught or have been illegally framed.

Let us remember that ‘Every Saint had a Past and every Sinner has a Future.’

Lastly, even from a civil liberties perspective, it is important for us to be responsible and
take action since anyone of us can be in a prison tomorrow even for absolutely no fault of
ours, like the way it happened during the Internal Emergency imposed between 1975 –
1977.
May All Beings Be Happy.

Kiran Bedi, It’s Always Possible – Transforming One of the Largest Prisons in the World [1998] Sterling, New
22

Delhi at page 390.

 12

Annexure – I

A – Video Linkage between prisons and courts for undertrial prisoners

One of the major problems faced by undertrial prisoners – is the never-ending delay in the
commencement and conclusion of their trial. There are many reasons for this. The courts
and the jails are overburdened with cases and prisoners, respectively. For example, on an
average, a Metropolitan Magistrate in Delhi has to deal with about 70 cases in a day and the
jail staff in Tihar jail sends nearly 1200 prisoners to the different courts in Delhi. Due to a
shortage in the number of escort vehicles and police personnel all over the country many
prisoners are not produced in their respective courts either on time or on their due date.

But advancement in the field of communication technology is being effectively put into use
to overcome the above mentioned problems. Through the Integrated Services Digital
Network [ISDN] technology, Courts and prisons can now be connected through video
linkage. All that needs to be done is to put a video camera and a television set in a separate
room in the prison complex where, all the prisoners who have to be produced in a
particular court on that particular date, are assembled. Simultaneously, another video set is
put up in the chamber of the presiding magistrate. At the appointed time, the magistrate
enters his chamber and the prisoners are produced before the video camera, one by one. If
the matter is concerning a simple extension of the remand of the prisoner, this is done
instantly and the next date for production is assigned. For this simple act, the prisoner need
not be transported all the way upto the courts, nor mobilize all the financial and manpower
resources. At the same time, the magistrate and the prisoner can talk to each other, face to
face and the magistrate can personally enquire whether the person has filed his bail
application or not, find out his period of stay in the jail, details of the crime he is alleged to
have committed and other personal details. Where the magistrate feels that it is a deserving
case, he can release the prisoner on bail too.

This technology can be further tested and improvised to conduct full-fledged trials from
prisons itself.

The Advantages of introducing this scheme –

1. All the prisoners can be produced on a timely basis.
2. It obviates the need to produce remand prisoners in courts. The extension of remand
can place electronically from the prison itself.
3. There is a reduction in the number of adjournments, which is often the result of an
accused not being present at all or on time at the hearing.
4. It opens the possibility of digitizing documents and court records thereby
systematizing, simplifying and speeding up the whole process.
5. Speedy trial of cases can be ensured due to the time saved in the whole process.
6. An early trial can help check the overcrowding of jails.
7. Speedier adjudication can also check the contamination of first time offenders into
becoming full fledged criminals.
 13

8. Magistrates can now personally observe the prisoners and interact with them directly
instead of mechanically signing the extension of remand papers forwarded by the court
staff and the escorting police personnel.
9. Prisoners get to speak freely to the Magistrates to vent their grievances without fear of
retribution due to the one-to-one communication facility.
10. They do not have to wear shackles during the journey to and from courts, to prevent
them from escaping.
11. The police do not have to worry about sparing men who are already in short supply, to
escort the undertrials to courts or worry about prisoners trying to escape during transit.
12. Congestion in the jail vans and court lock-ups leading to unhealthy and insecure
conditions will be reduced greatly.
13. Safety and security of the prisoners transported to and from courts will vastly improve
since it will minimize the interaction and fights between warring gangs in the jail vans
during transportation and in the court lock-ups.
14. Prisoners will be relieved of repetitive periodical strains, which they are subjected to
while being taken to courts just for the sake of extending their judicial remands.
15. The menace of smuggling in prohibited/ contraband articles like drugs, currencies,
weapons, telecom equipments, etc. will be contained because of reduced visits of
prisoners to the outside world till they are released on bail or discharged or acquitted.
16. Most importantly, it saves a lot of financial and manpower resources.

This would require a slight modification to the CrPC. Section 167[2][b] of the CrPC has to
be amended to read as follows – “No Magistrate shall authorize detention in custody under
this section unless the accused is produced before him either in person or through the
medium of electronic video linkage.” To begin with, this amendment can be brought in by
way of an Ordinance of the Governor too and can later on be incorporated into the CrPC by
the legislative assembly. It happened this way in Andhra Pradesh. It requires an active
coordination between the High Court of the state and the police and prison departments.

B – Fast Track Courts

The Union government has directed all the state governments to constitute Fast Track
Courts [FTCs] to speed up the trial of undertrial prisoners. The FTCs are to take up on a
priority basis, Sessions cases pending for over two years and other criminal cases involving
undertrials. Accordingly from 1st April, 2001, all undertrial cases from the district and
subordinate courts are to have been transferred to the FTCs for speedy disposal.
Additionally, about 10 Lakh Sessions cases out of the 2.4 Crore pending cases are also to be
transferred to the FTCs. The Centre has allocated Rs. 202.27 Crores for the establishment of
1,734 FTCs to make them functional by 1st April, 2001 and has obtained the consent of the
Chief Justices of the High Courts and Chief Ministers for the creation of these courts. The
progress of these courts will be monitored by the High Courts.23 The courts will be required
to refrain from adjournments except in emergencies. A fast track court is expected to

23 The Hindu [Delhi edition] dated 3rd December, 2000 at page 3.

 14

complete recording of evidence within a week. Judges and lawyers are expected to be
patient and cooperative failing which, fast track courts will serve no purpose.24

C – Special Courts in Jails

In a letter dated 29th November 1999, sent to the Chief Justices of all the High Courts, the
then Chief Justice of India – Dr. A.S. Anand had asked them to organsie Special Courts in
jails popularly known as Jail-Adalats to dispose off, cases of undertrial prisoners who were
willing to confess to their crimes that fell within the definition of Petty offences. For the
purposes of jail adalats, petty offences mean and include the following:
a. Offences punishable under sections 160, 279, 294, 298, 323, 334, 336, 337, 338, 341, 342,
343, 346, 352, 354, 355, 358, 403, 417, 421, 422, 423, 424, 427, 428, 447, 448, 482, 483, 486,
494, 497, 498, 500, 501, 502, 504, 506 [Part I], 508, 509 of the Indian Penal Code; and
b. All offences under any Act other than the Indian Penal Code which are punishable with
upto two years imprisonment.

Where the prisoner confesses to his crime then depending upon the period already spent by
him in jail and the seriousness of the charge against him, the presiding magistrate may
either release him instantly or order him to be released after spending some more time in
jail.

Jail adalats have been organised in a number of places and as of 2nd February, 2001 more
than 8000 such cases were disposed off all over the country after these courts started
functioning from early 2000.

Some of the benefits of this scheme are as follows –

ƒ Speedy trial and disposal of cases which also reduces the workload of judges.
ƒ Prevents the contamination of first time offenders by hardened criminals into
professional criminals.
ƒ Reduction of overcrowding in jails to some extent.

Encouraged by the success of such jail adalats, the Union Law Ministry has urged and
advised the states governments and Union Territories to make space for exclusive courts in
jail premises. In a communication sent to the states it has also advised them to set up legal
aid cells inside the jails. It has further directed that state legal service authorities should
constitute panels of advocates including lady advocates who would be assigned to the legal
aid cells in the jails to give advice to the inmates and draft legal documents once or twice a
week.25

But there are some problems with this scheme of jail adalats. Once a person confesses just
for the sake of getting out of the prison even when he is really not guilty, a permanent
record is entered against his or her name. This may not enable him or her to get a

24 The Indian Express [Delhi edition] dated 4th March, 2001 at page 4.
25 The Times of India [Delhi edition] dated 2nd February 2001 at page 5.
 15

government job or possess a passport. Additionally, the police may haunt and harass him
for any crime that is committed in their locality after their release. It would be better if one
could apply to be released on Personal Bond or on Probation even after confessing.

D – Alternatives to Imprisonment

Imprisonment is the punishment which is most commonly imposed on people who are
sentenced upon conviction. But experts and leading prison reforms committees have come
to the conclusion that –
• It destroys people’s lives; creates social outcasts and leaves them as misfits.
• Despite the heavy financial costs26 involved in imprisoning people, it fails to reform and
rehabilitate criminals.
• Imprisonment does not guarantee a reduction in the crime rate either.
• It helps in the promotion of a first time offender into a professional and hardened
criminal.

But some of the major Alternatives to Imprisonment can be –

1. Verbal sanctions, such as admonition, reprimand and warning.
2. Conditional discharge.
3. Economic sanctions and monetary penalties, such as fines and day-fines.
4. Confiscation or an expropriation order.
5. Restitution to the victim or a compensation order.
6. Suspended or deferred sentence.
7. Release on Probation under judicial supervision.
8. A Community service order.
9. Referral to an attendance centre.
10. House arrest.
11. Some combination of the measures listed above.27

The judicial authority, having at its disposal a range of non-custodial measures, should take
into consideration in making its decision the rehabilitative needs of the offender, the
protection of the society and the interests of the victim, who should be consulted whenever
appropriate. Such schemes will succeed only with the active cooperation of the police,
higher judiciary and the community outside [which will include the families of the offender
and the victim, schools, and other secular religious institutions].

Community Service has succeeded very well even in a developing country like Zimbabwe28
and even Andhra Pradesh has amended the IPC and included it as one of the sentencing
options.

26 The prison budget sanctioned for the year 2000 was Rs.804.639 Crores! Source: Prison Statistics 2000.
27 Please refer to the United Nations Standard Minimum Rules for Non-Custodial Measures [The
Tokyo Rules], for further details. Website address:
http://www.unhchr.ch/html/menu3/b/h_comp46.htm
28 Vivien Stern, Alternatives to Prison in Developing Countries, [1999] International Centre for Prison Studies,

King’s College and the Penal Reform International, London.