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Undertrial Prisoners looking for Justice

Delay in the investigation, numerous witnesses, insufficient judges are seen as reasons pertaining to the delay in judgments to the undertrials.The percentage of undertrial prisoners confined for more than three years has increased by 140% since 2000, while the percentage share of undertrial prisoners confined for less than 1 year has decreased by 7.5%, according to Commonwealth Human Rights Initiative analysis.

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Abdul Rahim, 57, is yet to recover from the trauma which he experienced while spending 18 years in jail from 1993 to 2011 before being declared innocent. “Half of my life got wasted in prison for a crime I didn’t commit or was not even aware of,” he said.

Muslims comprise 5.86 per cent of the total population in Tamil Nadu but are overrepresented in the category of undertrial prisoners. According to National Crime Records Bureau (NCRB) data from 2020, the percentage of undertrial Muslim prisoners in Tamil Nadu is 13.43 per cent, more than double their total population in the state.

Rahim said getting bail was a difficult task when he was in jail. “I was unable to hire a lawyer, owing to my economic constraints, to prove my innocence, because of which my cases were handled by an inefficient government lawyer,” he said.

In their paper ‘Bail and Incarceration: The State of Undertrial Prisoners in India’, researchers Aparna Chandra and Keerthana Medarmetla write that despite various interventions and reforms introduced by the legislature and the judiciary, the extent and duration of undertrial incarceration amongst prisoners are not only on the rise but also that it has a disproportionate impact on the most socio-economically vulnerable sections of the society.

The undertrial process getting delayed has led to Muslim prisoners spending more than 10 years in jail. One such victim is Coimbatore resident Siddique Basha, 42, who was locked up in Coimbatore jail in 1998 and was later released in 2010 after the court announced him innocent.

Basha, who now lives in Chennai, said, “I was considered as a suspect for the communal riot case in1997. I wasted around 10 years of my life in jail during my undertrial phase. The way we were treated in the jail has left a sense of trauma even after 10 years of release. Around 18 Muslim prisoners were in jail for more than 10 years, and now they are under life imprisonment.”

Basha was taken into custody in 1998 by the Coimbatore Police after a clash between Muslim and Hindu communities in 1997.

Retired Madras High Court judge Hari Paranthaman said that the trend of more Muslims in prisons started after the rise of Hindutva forces in the country which is synonymous with the Bharatiya Janata Party’s (BJP) win in 2014.

“The 1992 Babri Masjid incident can be seen as the inception of the polarization in the country, after that many incidents like Coimbatore communal clash, Madurai bomb blast became the incidents of polarisations in Tamil Nadu,” added Paranthaman.

According to a senior TN police official in the law and order department, who spoke on the condition of anonymity, around 40 to 50 Muslim fundamentalists are imprisoned, while no Hindu fundamentalists are in jail.

In fact, Hindu suspects are not even classified as fundamentalists, informed a prison official who was unwilling to be named.

Pointing out the classification of prisoners as Muslim fundamentalists, the senior TN police official said, “There is no question for classifying Hindu prisoners as fundamentalists. There have been incidents in Madurai and Coimbatore jails where Muslim fundamentalists killed prisoners. No Hindu has dared to kill anyone in jail. Only two Hindu fundamentalists were in jail, and are now out on bail.”

He added, “Education and poverty are one of the major reasons for Muslim populations dominating the undertrial numbers. Most of the accused do not know why they are in prison for three to four years. Often, no charge sheet is filed even after 90 days in jail. Still, 10 per cent of prisoners do not know their rights. An audit process should take place in TN prisons.”

The Muslim prisoners who were in jail during the undertrial also said that the prisons were divided on the basis of castes and religions, and the bail process was not easy for them.

The TN police senior official defended that classification of prison in this way is important to maintain law and order in the prison.

“Only two prisons in south TN are divided on caste basis. The rest of the prisons are divided on the basis of high and low-risk criminals. Also, giving bail is for reformation, but what is happening outside is different. Muslim undertrial prisoners want parole without an escort. This will be a hindrance for the other accused who are applying for bail,” he said.

According to a provision given in the Code of Criminal Procedure (CrPC), if a charge sheet is not filed within 90 days of the arrest, then the accused should be released.

But in the case of Muslim undertrials, this is not followed and many of them are kept in prison for more than three to four years without even having been convicted of their crime.

“Delay in the investigation, numerous witnesses, insufficient judges can also be seen as reasons pertaining to the delay in judgments to the undertrials,” said Paranthaman.

The percentage of undertrial prisoners confined for more than three years has increased by 140% since 2000, while the percentage share of undertrial prisoners confined for less than 1 year has decreased by 7.5%, according to Commonwealth Human Rights Initiative analysis.

Aloor Shanavas, MLA from Nagapattinam, said that reservations should be followed for the appointment of judges. “Since many of the judges belong to upper castes and upper classes, they are indifferent to the struggles of the people’s cases they are handling,” he said.

“Most of the judges have a RSS background which prevents them from being impartial and for these reasons reform in the judiciary becomes an indispensable one,” he added.

Other than the filing of charge sheets and appointing lawyers, Deputy Inspector of General of TN Prison Department, Murugesan, pointed out that numerous witnesses related to the case are the major reasons for so many prisoners in undertrial.

Since 1995, only 15 million have been providing legal services and advice by the Legal Services Institutions established under the Legal Services Authorities Act, 1987, when nearly 80% of India’s population are in need of legal aid, IndiaSpend reported on February 11.

“Many of the Muslims are from backward classes, which proves to be a hindrance to the availability of good lawyers and judicial advice,” said Shanavas. He added that the free legal aid is poor in Tamil Nadu which makes them stay in prison for an extended period.

A Marx, President, National Confederation of Human Rights Organisations (NCHRO), said that many Muslim prisoners are denied this bail procedure by bringing them under draconian laws like UAPA and TADA (repealed), without any evidence, which eventually becomes impossible for the prisoner to get a bail.

“Since draconian laws come under the union government, the state government has no say in it to release a prisoner arrested under such Acts,” said Marx. “In the Madurai bomb blasts incident, around 13 Muslim people were arrested who had no relation with any of those incidents.”

The incidents cannot be seen only as just false cases, these long periods of incarceration can lead to complete devastation of their social life, said Marx. He added that the repeated accusing of Muslims for crimes that they have not committed results in the people of their community being susceptible to profiling and subsequent false cases.

Caste prejudices and over-policing of certain communities like Muslims and Dalits can be seen as major reasons for the over-representation of undertrials of the people belonging to these communities. “The trend should be seen as dangerous to the diversity of the democratic nation,” Paranthaman added.

Marx said detailed data on demographics and the economic status of undertrials is required to understand the pattern of incarceration.

The issue of minorities being overpopulated in prison is a problem that is the same everywhere in the world, Marx added. Deeply entrenched prejudices, structural and procedural blockages in the criminal justice system, delayed investigation, deficient prosecution system, and inadequate funding for the judiciary were among some of the issues for high incarceration.

According to the Sachar committee report released in 2006, in many of the developmental indicators, Muslims were below Scheduled Castes and Scheduled Tribes in backwardness. 

“Sachar Committee’s recommendations to improve the situation of Muslims were never taken into consideration by the Union Government,” said Shanavas. “Instead, they have created a social environment through the fringe group organisations, provoking Muslim youngsters into crimes, making them as the scapegoats.”

Shanavas said that lack of opportunities, socio-economic background, and systemic bias discrimination against Muslims can also be reasons for making them vulnerable to arrest.

Responding to the question of whether education is the reason for Muslims being overpopulated in prison, M.H. Jawahirullah, MLA from Ramanathapuram, said that such a claim was a hoax.

“False cases being planted on the Muslim people and the partiality in the judicial system are the two main reasons for the over-representation,” he said. “It starts from the mentality of the police who think the minorities will be the crime-doers.”

He added that the crimes need not have been committed by people belonging to the same community every time. “Communal clashes have to be investigated with an open mind and bias of the police should not reflect in their investigation,” he said.

Most of the incidents in India, where Muslims have been accused, must have only reacted to the perpetrators, said Jeyaraman, a retired History professor. “Actions have been taken against Muslims but not against the [actual] perpetrator— these incidents have provided a chance to blame Muslims and their religious beliefs, which are usually claimed of provoking criminal activities,” he added.

Shanavas said that when a counter case is filed against the perpetrator, actions are not being taken by the police. “In the Coimbatore bomb blast case, the Hindus who provoked the blast were left without any judicial actions and punishments,” he said.

Explaining the reason behind Muslims in bigger numbers, criminologist Hunny Matiyani said, “As per PSI 2020 National Crime Records Bureau (NCRB), 64.4% under trials belonged to Hindu religion and 24.9% belonged to Muslim community. But yes, keeping in mind the percentage of the Muslim population, they are overrepresented in the undertrial population. The reason behind over-representation could be their low socio-economic background and minority status because of which they have poor or no legal representation. Fast track courts should be set up to look after the undertrial prisoners, especially Muslims.”

India’s prisons are overcrowded with an average occupancy rate of 118.5% in 2019, as per NCRB data. A need for separate law and order and investigation wings of the police department had been recommended by the 154th Law Commission report (1973) and Supreme Court (2006).

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