Beyond Aryan Khan: India's prison statistics highlight dismal view of undertrials
Kartikeya Bahadur
Picture Credit: News 9
On October 3, 2021, Aryan Khan, the 23-year-old son of Bollywood star Shah Rukh Khan, was arrested by the Narcotics Control Bureau (NCB) after an alleged drug bust on a cruise ship o the coast of Mumbai, Maharashtra. He saw his bail application rejected, rst by the Metropolitan Magistrate on issues of jurisdiction and then by the Special NDPS court on merits. The case for bail nally found favour with the Hon'ble Bombay High Court granting bail to Khan and other accused in the matter October 28, 2021.
Aryan Khan's defense saw a plethora of well known and well established lawyers present his case in Court, including two designated Senior Advocates, one of whom so happened to be the former Attorney General of India. In the bail conditions and were set free, Dhamecha as per media reports, has been unable to comply with them yet. In all, Khan has spent a total of 27 days in custody, before being released, bringing to light in this media circus of a trial, a small glimpse of an underlying issue with our legal system: that it is slow, cumbersome and that it aects people of dierent socio-economic standing dierently.
Khan's bail was a part of The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act, 1985), a special law which makes stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances and to implement the provisions of the International Conventions. In cases lodged under NDPS Act, 97 percent of the persons arrested were charged with personal consumption, and of all the matters decided 99 percent of the accused simply pleaded guilty, found a recent study by Vidhi covering Mumbai for the year 2017 and 2018. The report also highlighted that most of the persons arrested belonged to marginalised sections of society. Similar to the NDPS Act, there are other laws in the country under which persons are arrested during pendency of trial, the most substantial of which is the Indian Penal Code.
Currently there are 41,985 undertrial prisoners arrested for liquor and narcotics drugs-related Acts, which includes arrest under the NDPS. This is a small percentage as compared to the total undertrial population of 3,30,487, of which 74.08 percent of prisoners were conned for a period up to one year (2,44,841 prisoners), as on December 31, 2019. Out of this, most of the undertrial prisoners (1,22,254 prisoners) were conned for up to three months accounting for 36.99 percent of total Undertrials. This is followed by 68,447 undertrial prisoners who were conned for 3-6 months and 54,140 undertrial prisoners who were conned for 6-12 months.
The prison statistics of the country provide a dismal image of undertrials, who are unable to secure their release. A staggering 69.05 percent of India's prison population, amounting to 3,30,487 people, are currently undertrials. This can be contrasted with the year 1979 when the Law Commission of India released the 78th report on Congestion of Undertrial Prisoners in India where the percentage of undertrial prisoners was 54.9 percent, almost 14 percent lower than what it is today. In addition to that, 28.6 percent undertrial prisoners are labyrinth which is the legal system in our country.
The modern legal system hinges on the presumption of innocence of the accused until proven otherwise. To prove a person's guilt, a predetermined judicial process is required to be undertaken; including but not limited to a trial and appeals at various levels. Judicial custody or detention prior to conviction is meant to be a temporary restriction on the person's right to liberty for two main reasons: to preserve the larger cause of maintaining law and order and to prevent the accused from aecting the outcome of the investigation. Taking away anyone's right to mobility is an extreme step and should not be taken lightly. Unfortunately, in India, several people are suering in jails while their trials are still pending.
When a person is arrested in apprehension of having committed a crime, they are to be produced before a judicial magistrate within 24 hours, where the magistrate decides whether the accused needs to be kept in custody, and if so, in custody of the police or sent to judicial custody, where in they will be conned in a jail. After the arrested person is sent to judicial custody, they become part of the prison statistics on undertrials. The arrested undertrial then is required to move a bail application in order to expedite his release, even though the courts are required to refrain from mechanically extending custody.
Picture Credit: News 9
As far as the loopholes in securing bail are concerned, most of the paperwork is carried out in English, which is not understood by the vast majority of the population. The opaqueness of this procedure leads to undertrials not being able to properly represent their case. The legal aid mechanism is also patchy with the criminal procedure code mandating legal aid only at the time of trial; thus, the accused is left to the mercy of the magistrate or sessions judge supervising his custody to appoint him a lawyer. Even when a person in remand manages to get legal representation and attain a bail order, the iniction of hefty surety amounts as part of bail conditions means people who should be free end up spending large amounts of time in custody, solely because of socio- economic reasons.
Public Prosecutors usually tend to oppose bail as a matter of standard practice without any application of mind, which leads to unnecessary delay even in routine matters where the grant of bail would be highly likely and justied. Even in Khan's matter, the NCB got the Additional Solicitor General, the senior most advocate of the Union of India in the State of Maharashtra, to personally appear to oppose bail applications right from the magistrates court. It is also a case that even in matters where the bail would be a statutory right by virtue of the nature of the oense the accused is charged with, the tedious and often prole of the accused but simply impose the exact bail conditions on all persons accused of similar oences. This often leads to prolonged and unnecessary detention of persons from poor and marginalised backgrounds, who have to arrange for bail bonds that are beyond their means. This is despite various directions of the Supreme Court and High Courts on considerations to be made while determining conditions of bail, e.g. in the judgement of Hussainara Khatoon vs. Home Secretary, State of Bihar.
Further a large number of undertrials are in detention for petty crimes or non- grievous oenses and are entitled to bail; for instance, around 9.2 percent of the undertrial detainees are accused of theft, while only 3.2 percent of convict prisoners are in for the same oense. However, these undertrials are not getting bail in a timely and just manner due to lapses in procedure and systemic loopholes. This leads to overcrowding, unacceptable overstretching of facilities, and consequent terrible conditions in detention facilities. The problems that prisons face in many parts of the world are virtually the same and have mostly to do with overcrowding, needs of undertrials, special problems of women and juveniles, the relationship between sta and prisoners, ill-treatment, neglect of health and hygiene, inadequate food and clothing, and jail visits. The overcrowding of detention facilities jeopardises the fundamental rights of the accused in terms of unnecessary connement, mental trauma, and also puts an unnecessary burden on the exchequer.
Extended periods of detention for undertrials also strain the capacity of state incarceration facilities that are already overcrowded. The cumulative holding capacities of all detention facilities in India is for 4,03,739 prisoners and they are functioning at 118.5 percent occupancy. In a study done by Commonwealth Human Rights Initiative in Andhra Pradesh, it was found that there was denial of legal assistance to prisoners. This further led to chronic overcrowding of prisons, leading to terrible conditions in which mostly unconvicted persons are compelled to spend an unjustiably long-duration incarcerated without proof of guilt.
The Supreme Court in 2016 directed for the formulation of the Undertrial Review Committee (UTRC) and gave the general directions with regard to the condition of undertrials in the country, directing periodic review of the status of undertrial prisoners in every district. Despite these directions there has beenteam which he thought was best in the country. There are thousands of people in this country who cannot aord a lawyer; who are illiterate, poor and neglected. Our country and judicial system must think of such people and correct this." So before we close the chapter of the arrest and subsequent bail of the son of one of the most recognisable personalities in the country, lets spare a thought for release of the thousands of people who are not in a position to navigate the rigmarole of the judicial process, and for whom traversing from the magistrate's court to the High Court in 25 days would be an unimaginable feat.
This article was first published on News 9 on November 1, 2021
