The book serves as a wake-up call to the gross human rights violations inflicted on thousands of undertrials. Kolhatkar’s detailed discussions—some spanning multiple meetings—reveal personal anecdotes from the prisoners’ time behind bars. She brings to light not only their experiences but also the deplorable prison conditions, including issues related to space, hygiene, medical care, and food. The research offers a comprehensive and disturbing insight into life within prison walls, particularly how conditions deteriorated to near-unbearable levels during the COVID-19 pandemic, with grievances left unaddressed.

Beyond its urgent call for prison reforms, The Feared is also a compelling narrative of resilience, courage, and endurance. It captures stories of solidarity and the unexpected bonds formed in confinement. Kolhatkar interviewed members of trade unions, communist parties, and even the Shiv Sena, providing a diverse spectrum of perspectives. Above all, she underscores the critical role of journalists as the fourth pillar of democracy—a role that is rapidly eroding.

The book features conversations with political prisoners such as Sudha Bharadwaj, Nilofer Malik, Sameer Khan, Koel Sen, Prashant Rahi, Shikha Rahi, Sanjay Raut, Kishorechandra Wangkhem, Anand Teltumbde, Rama Ambedkar, Binayak Sen, Kobad Gandhy, Muralidharan K, and P. Hemlatha. These interviews introduce an element of suspense and unpredictability as they explore the circumstances of their arrests and the harsh realities of their incarceration.

Kolhatkar offers one of the most incisive examination of the growing fascist tendencies within the Indian state. She highlights how the ruling BJP has dealt a severe blow to the fabric of democracy and the Constitution. The book not only documents the erosion of human rights but also ignites a call for resistance against neo-fascist injustice. The interview with Sudha Bharadwaj, in particular, stands out as deeply moving.

Drawing parallels between India’s political prisoners and the treatment of dissenters under Nazi Germany in the 1930s, Kolhatkar examines the fascist nature of laws like the UAPA. She also references Peter Benson’s research on political prisoners in Portugal during the same period.

The book provides an in-depth psychological analysis of imprisonment, revealing how incarceration often strengthens a prisoner’s resolve rather than breaking their spirit. Through meticulous research and extensive conversations with prisoners and their families, Kolhatkar uncovers the lasting psychological scars inflicted by prolonged incarceration. She notes, “The first night in jail is reputed to be the hardest. After that, you learn how to survive, though many prisoners carry lifelong scars.”

Kolhatkar also shares her motivation for writing The Feared, emphasizing the need to shift public perception about political prisoners. She states, “People assume that if someone is behind bars, they must have done something wrong. It’s time we understand that being imprisoned doesn’t necessarily mean guilt. One of the aspects I wanted to highlight was the mental toll on prisoners and their families. Even after acquittal, many continue to live in fear because the legal battle never truly ends.”

The book features a powerful introduction by Julio Ribeiro, who examines the stripping of human rights from prisoners and critiques India’s growing neo-fascism. He condemns the hypocrisy of a nation striving for economic supremacy while suppressing fundamental freedoms. Ribeiro provides a gripping account of the injustices faced by Sudha Bharadwaj in Yerawada Jail, Pune, and Byculla Jail, Mumbai, and the ostracisation of Varavara Rao, who was denied contact with his family. He also recounts the unjust incarceration of Kishore Chandra Wangkhem in Manipur for opposing the glorification of the Rani of Jhansi.

Justice Srikrishna, in his foreword, discusses the prolonged incarceration of political prisoners and the grim state of Indian jails. He stresses the importance of upholding free expression, regardless of ideology, and condemns the practice of imprisoning individuals merely to silence dissent. He remarks, “I am a Hindu, but that does not mean I should hate someone who isn’t or put them behind bars. These political prisoners have not been convicted of any crimes, yet they remain incarcerated. Even if a person is convicted, they do not cease to be human, even though some of their constitutional rights may be restricted.”

At the book launch, senior advocate Aspi Chinoy also shed light on the appalling state of Indian prisons, emphasizing that “any self-respecting civilized nation cannot allow such conditions to persist.” He pointed out that political prisoners like Gautam Navlakha, Sudha Bharadwaj, Varavara Rao, and Arun Ferreira, accused in the Bhima Koregaon case, have been acquitted in most of the cases against them. “The goal is not to convict them but to detain them indefinitely. People are jailed for years simply because of their political beliefs. Anand Teltumbde was denied a mosquito net, and Father Stan Swamy was denied a sipper. Indian jails are overcrowded, lacking even basic necessities. They should not be turned into concentration camps,” he added.

Kolhatkar expresses deep gratitude to those who supported her in bringing The Feared to life, including Sanober Keshawar, Freny Maneckshaw, Susan Abraham for documentation resources, Ramya Sharma for encouragement, and Carol Andrade, Father Rudy Heredia, Rupa Pannalal, Mondipa Mukherjee, and Advocate Sunip Sen for moral support. 

(The author is a freelance journalist)

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The post The Feared: A wake-up call to the gross human rights violations inflicted on thousands of undertrials appeared first on SabrangIndia.

The data also provides the ethnic division of the prisoners- Hindus constitute73.8%, Muslims 17.1%, Sikhs 4.2%, and Christians 3.3%. In under trials, 65.3% are Hindus, 19.3% Muslims, 4.7% Sikhs, and 2.5% Christians. Among detenues, Hindus represent 50.3%, Muslims 35.2%, Sikhs 0.4%, Christians 9.8%. The state of Tamil Nadu has the highest number of detainees, reported to be 2,129.

On December 13, during the ongoing winter parliamentary session, Mohamed Abdulla raised several questions regarding the gender-wise as well as the religion-wise prisoners’ ratio. Abdulla belongs to the Dravida Munnetra Kazhagam party and is a member of the Rajya Sabha. These questions were presented to Ajay Kumar Mishra, who currently serves as the minister of state in ministry of home affairs.

When asked regarding the details about the gender-wise prisoners’ ratio, the minister presented the annexure given below.

From the above table, it can be deduced that males constitute 95.84% of the total inmates’ population in the country, whereas females and the transgender community constitute 4.15% and 0.01% respectively. The highest number of inmates are present in the prisons of Uttar Pradesh with 1,21,609 inmates and the lowest number of inmates, 6 in total, are present in Lakshadweep.

The state of Uttar Pradesh has the highest number of male and female prisoners. As per the data, a total of 1,16792 males and 4809 females are present in Uttar Pradesh. The lowest number of males, only 6, are present in Lakshadweep. The prisons of DNH & Daman Diu, Ladakh and Lakshadweep have no female inmates. The highest number of transgender prisoners, 17 in total, are present in the prisons of Maharashtra as well as West Bengal.

The following table provided the religion-wise details of the convicts lodged in jails:

From the above table, it can be observed that the Hindus make up 73.8% of the total convicts lodged in jails, followed by Muslims (17.1%), Sikhs (4.2%), Christians (3.3%) and other religions (1.6%) of the convicts lodged in jails. In the prison of Uttar Pradesh, a total of 20,063 Hindus, 550 Christians and 5,881 Muslims have been lodged, the highest amongst religion-wise population from other states. The highest number of Sikhs are present in the prisons of Punjab, with 3860 Sikh convicts. The highest number of other religions’ convicts are lodged in Maharashtra, a total of 958 convicts.

The above table provides the percentage distribution of all the religions of the under trials lodged in jails. As per the data, Hindus make up 65.3% of the total population of under trials, Muslims make up 19.3%, 4.7% Sikhs, 2.5% Christians and 0.7% other religions. It is essential to point out here that the aforementioned percentage will fully accurate as the state of Maharashtra has not provided any data on the break-up of the under trials religion-wise. As expected, the highest number of under trials are lodged in the jails of Uttar Pradesh, holding 94,131undertrails. On the other hand, the lowest number of under trials are lodged in jail of Lakshadweep with only 6 under trials.

A total of 65,789 Hindus and 26,149 Muslims, highest amongst the other states, were present in the jails of Uttar Pradesh. The highest number of under trial Sikhs, 14565 in total, are lodged in Punjab while the highest number of under trial Christians are in Tamil Nadu, a total of 1651. The prison of Uttar Pradesh also houses the highest number of other religions’ under trials, a total of 1089.

Lastly, the above table providing the percentage distribution of all the religions of the detenues lodged in jails was also provided in the response of the Union. Detenues are those people who are held in custody. The Hindus make up 50.3%, followed by Muslims at 35.2%, Christians at 9.8%, Sikhs at 0.4%, and the other religions constitute 0% of the detenues lodged in jails. Notably, since no data is present for the state of Maharashtra, the aforementioned percentages will not be fully accurate.

The statistics reveal a significant gender disparity, with males comprising 95.84% of inmates nationwide. Uttar Pradesh hosts the highest inmate count while Lakshadweep holds the lowest. Among religious groups, Hindus form the majority among convicts, under trials, and detenues, particularly prominent in Uttar Pradesh and Tamil Nadu. Muslims have a substantial presence in Uttar Pradesh and Jammu & Kashmir, while Sikhs are notably concentrated in Punjab. For Christians, their highest population can be found in Uttar Pradesh and Tamil Nadu. These patterns underscore regional variations and demand targeted interventions within the criminal justice system to address these disparities and ensure equitable representation and treatment across demographics.

The complete answer can be accessed here:

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The post India’s Prisons: 95.84% male population, highest number of convicts and under trials languishing in UP prisons appeared first on SabrangIndia.

In order to ensure conditions (inside jail faculties) for a dignified human existence inside the jails, the Court reminded the state government, emphasising that prisoners are also a part of society, that failing to provide a decent environment could prevent the justice delivery system from delivering justice with dignity.

“It is dignity that is at the root of the justice delivery system so that any punishment awarded is met out in accordance with the law in circumstances that are conducive to human life is without offending the basic/fundamental human rights.” (Para 6)

In essence, the bench was hearing a Public Interest Litigation (PIL) plea concerning the deplorable and unacceptable conditions of state jails and the current wage levels for inmates. On this, the divisive bench of Chief Justice Pritinker Diwaker and Justice Saumitra Dayal Singh observed that the State’s position and approach are primarily to be blamed for the said matter’s continued pending status.

“Perusal of the order sheet indicates, the matter has remained pending largely on account of the stand/approach adopted by the State. It borders on indifference to the plight of the prisoners and under trials. That indifference if exists, may never find acceptance to the Court.” (Para 3)

Reprimanding the state for not taken any action even after being given ample of opportunities by the Court, the Court highlighted that the current meagre sum of wages being given to the incarcerated needs to be revised.

“Repeatedly, orders have been passed giving opportunity after opportunity to the State respondents to take an informed decision with respect to revision of wages to be paid to the convicts serving out their sentence. At present, a paltry sum of Rs. 40, Rs. 30 and Rs. 25 is being paid to such convicts. It is informed, the same has not been revised for more than 10 years,” the order stated. (Para 4)

The Court observed that despite the officers of the State generally showing up to the court on the scheduled days, they never gave the Court any assurances about a deadline for when a decision will be given regarding revision of pay or expand and renovate the jail facility. The Court further stated that State officials were simply communicating their serious concerns in a ‘lip service manner.’

“This leads us to a prima facie impression that the State authorities are only offering lip service to the grave concern voiced by the Court. Had they been serious, action commensurate to their words and writings offered to the Court (in the affidavits submitted), would be visible. We would not be struggling at the same stage.” (Para 8)

The “tremendous” overcrowding in Uttar Pradesh’s district and central jails was another issue raised by the court. The Court stated that given the number of overcrowding ranges from 0.5 to 3.2, it cannot go unabated. The Court stated that society has gone through enough hardships as a result of the COVID-19 pandemic.

“…the State authorities appear to have not woken up to the imperative need to urgently increase the jail facility adequately, to house all convicts and under-trial prisoners, in conditions conducive to dignified human existence.” (Para 5)

Further noting that the overcrowding has only fallen marginally from 1.9 in June 2022 to 1.6 in June 2023, the Court said that assurances given by the state authorities were not earnest.

“Considering the fact that the average rate of overcrowding has fallen marginally from 1.9 in June, 2022 to 1.6 in June, 2023, we find the assurance given is not worth accepting. The words offered by the State authorities are light.” (Para 9)

Pursuant to this, the Court also took cognizance of the murders being committed inside prisons, the Court said that nothing would be “more shocking” to the Court or the justice delivery system (as a whole) than the murder of any under trial or convict while in the custody of the Court.

Further bemoaning the attitude of the State Government officials towards the predicament of the undertrials and the convicted, the bench instructed the secretary, finance, and the additional IG (prisons) to attend the subsequent hearing in person.

“To allow present circumstance to exist would be to perpetrate similar occurrences in future. That would be a blot on the entire judicial set up,” the Court added as it granted one last chance to the state to act firmly for revisiting prison wages, failing which affidavits must be filed by the officer’s present in Court.

The full judgment can be read here:

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The post Allahabad HC: Appalling conditions of the state jails, indifference shown to the plight of prisoners appeared first on SabrangIndia.

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On December 13, Member of Lok Sabha, Shyam Singh Yadav (BSP), questioned whether the government was aware that around 76 percent of prisoners in jail are awaiting trial, which is significantly higher than the global average of 34%. He sought details of the same.

The MHA informed the Lok Sabha that as of December 31, 2021 there were 5,54,034 prisoners lodged in the prisons of the country, out of which 4,27,165 were undertrial prisoners.

On the specific query about number of prisoners awaiting trials belonging to the SC, ST and OBC community in the State of Uttar Pradesh, the Ministry stated that as on December 31, 2021 there were 90,606 undertrial prisoners in the State of Uttar Pradesh. Out of these, 21,942 belonged to Scheduled Caste (SC) community, 4,657 belonged to Scheduled Tribe (ST) community and 41,678 belonged to Other Backward Class (OBC). The MHA did not have district-wise data for the same.

When asked about measures taken to reduce number of under trials, the Ministry said that “it is the responsibility of respective State Governments to take necessary steps and measures for facilitating the fast-tracking of the cases of undertrial prisoners in their respective jurisdictions”. However, the Model prison Manual 2016 provides details of facilities which may be provided by states such as “E-prisons Software, which is a Prison Management Application integrated with Interoperable Criminal Justice System, provides facility to State Jail authorities to access the data of undertrial inmates in a quick and efficient manner, which helps them in identifying undertrial inmates whose cases are due for consideration by the Under Trial Review Committees, etc”.

The MHA response may be read here:

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The post More 90k undertrials in UP prisons with 24% SCs, 5% ST and 46% OBC: MHA appeared first on SabrangIndia.

On November 28, the Supreme Court raised serious concerns over underseals who have been granted bail but are unable to fill in the bail bonds or provide surety in court, preventing them from being released from prison.

The Supreme Court was hearing a plea where a misinterpretation of its order by a trial court judge in Andhra Pradesh resulted in the accused languishing in custody even after interim bail was granted by the top court. The accused was granted bail after being in custody for 9 years but the accused had to undergo custody for two additional years.

A bench comprising of Justices A. S. Bopanna and S. Ravindra Bhat observed that, “This is a regular phenomenon where accused are given bail but they are not able to give bail bonds or local surety. It will be appropriate that the district legal service authority (DLSA) should devise some method,” as provided by LiveLaw.

The order of November 28, 2022 may be read here. 

“This case depicts very sorry condition of affairs,” the Supreme Court had previously said in reference to the circumstance. The Supreme Court had also made the observation that corrective measures needed to be taken, particularly when legal services authorities were used to start the proceedings.

The counsel representing the petitioner, senior advocate Mahalakshmi Pavani, informed the court that only a small number of High Courts had submitted their reports in response to the order dated May 9, 2022, which required all High Courts to do so in relation to bail orders that had not been followed. The counsel for the Rajasthan High Court informed the Court that a report had been submitted.

The order of May 9, 2022 may be read here.

The Court listed the matter after three weeks and has directed the other High Courts to file the status report in the meanwhile.

Background to the Plea

The accused was granted interim bail by the Apex Court on September 28, 2020, and he was ordered to appear before the Trial Court within three days of the date of the order. The Order further instructed the Trial Court to grant him temporary bail with whatever terms and restrictions it saw fit. The Trial Court heard the bail request on October 29, 2020. Despite this, he was not released on bail, with the court ruling that the application was not viable because the three-day time limit established by the Apex Court had passed.

The fact that it was the Trial Court misinterpreted the provision of “three days,” which was added to the aforementioned order to speed up the procedure, resulted in a two-year delay in the accused’s release on bail, disturbed the Bench.

On May 9, 2022, The Supreme Court bench of comprising Justices U.U. Lalit, S. Ravindra Bhat, P.S. Narasimha and Sudhanshu Dhulia had expressed their concern over the misinterpretation of its order by a trial court judge in Andhra Pradesh, which resulted in the accused languishing in custody even after securing interim bail from the Apex Court.

The four-judge bench referred to the cases of that Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar [1979 SCR (3) 532] and Moti Ram & Ors vs State Of M.P [1979 SCR (1) 335] and expressed dismay over the current case, as while detention for 9 years was judged to be adequate to release the accused on bail, the accused had suffered custody for two more years.

Directions passed in the order passed on May 9, 2022:

1)  “Every High Court shall give us details of all such orders which remain to be complied with and about the persons concerned who are still languishing in jail. One of the ways to address the problem would be to have a register and maintain the figures as to in how many matters orders directing release of the persons on bail were issued and if out of such total number of matters, any person stood deprived of the opportunity of being released on bail for some reason or the other. The Register must indicate the reason including whether proper security etc. could be arranged by the concerned person or not. Such matters should then be listed before the concerned court in the succeeding month and the fact that the person has not yet been released on bail, be brought to the notice of the concerned Court under whose orders the relief of bail was afforded to the person(s). 

2)  Let the details be given by each High Court within six weeks from today. Before parting, we must record that the petitioner has now been released on bail. In effect, where the custody of a person for 9 years was found to be sufficient to entitle him to be released on bail, is now turned into custody for 11 years. This is nothing but 5 reincarnation of Hussainara Khatoon1 & Moti Ram.”

Previous Jurisprudence:

It is pertinent to note that Section 436A of the Criminal Procedure Code prescribes release of prisoners by a court on a personal bond with or without surety if he or she has spent half the maximum period of sentence. The issue of under trials languishing in jail has been brought up by the Supreme Code many a times, but there has not been much reforms.

In December 2017, a public interest litigation (PIL) had brought up the issue of over 300 under trials, who despite being granted bail by courts were languishing in capital’s jails due to their inability to furnish bail bonds and surety bonds.

A Bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar, in a significant ruling titled Ajay Verma v Govt of NCT of Delhi W.P.(C) 10689/2017, said it was the responsibility of every judge issuing an order of bail to monitor its execution and enforcement.

“The importance of the rights of prisoners under Article 21 of the Constitution of India, who have been accused of even serious crimes, cannot be overlooked under any circumstance,” the High Court had remarked.

The High Court had observed that failure of a court in ensuring that an order of bail was complied with could lead to departmental action against the concerned judicial magistrate.

In April 2022, yet another case of struggling in production of bail bonds, Arshad Yusuf, Inayat Altaf Sheikh and Showkat Ahmad Ganai, three Kashmiri students in an engineering college in Agra, were charged with sedition in October, 2021 for allegedly celebrating Pakistan beating India in a World Cup match. The Allahabad High Court granted them bail, but they are yet to leave prison as their families have no money to furnish their bail bonds.

Role of DLSA

It is the function of the District Legal Services Authority to provide free and competent legal aid in the nature of counselling and legal advice, as well as free legal services in the conduct of cases before Courts and Tribunals. It is their duty to make special endeavours for rendering free legal aid to under trial prisoners whose cases are pending in courts. Thus, the assistance of prison officers and panel lawyers of District Legal Services Authority can be taken for drafting bail applications, to be moved by under trial prisoners.

Article 39A of the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability. 

Under the Legal Services Authorities Act, persons eligible to receive legal aid include members of Scheduled castes/scheduled tribes, victims of human trafficking, women, children, mentally ill persons, victims of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster or persons with low income. Legal Services Authorities after examining the eligibility criteria of an applicant and the existence of a prima facie case in his favour provide him counsel at State expense, pay the required Court Fee in the matter and bear all incidental expenses in connection with the case. The person to whom legal aid is provided is not called upon to spend anything on the litigation once it is supported by a Legal Services Authority.

The issue of under trials languishing in jail due to lack of ability to supply bail bonds and surety has been under the consideration of the court since a long time. On February 5, 2016, in Re – Inhuman Conditions in 1382 Prisons [WP (C) No.406 of 2013], it was held that prisoners, like all human beings, deserve to be treated with dignity and to give effect to this, following directions were issued by the Supreme Court:

       i.  “The Under Trial Review Committee in every district should meet every quarter and the first such meeting should take place on or before March 31, 2016. The Secretary of the District Legal Services Committee should attend each meeting of the Under Trial Review Committee and follow up the discussions with appropriate steps for the release of undertrial prisoners and convicts who have undergone their sentence or are entitled to release because of remission granted to them;

     ii.  The Under Trial Review Committee should specifically look into aspects pertaining to effective implementation of Section 436 of the Cr.P.C. and Section 436A of the Cr.P.C. so that under trial prisoners are released at the earliest and those who cannot furnish bail bonds due to their poverty are not subjected to incarceration only for that reason. The Under Trial Review Committee will also look into issue of implementation of the Probation of Offenders Act, 1958 particularly with regard to first time offenders so that they have a chance of being restored and rehabilitated in society;

   iii.  The Member Secretary of the State Legal Services Authority of every State will ensure, in coordination with the Secretary of the District Legal Services Committee in every district, that an adequate number of competent lawyers are empaneled to assist under trial prisoners and convicts, particularly the poor and indigent, and that legal aid for the poor does not become poor legal aid;

   iv.   The Secretary of the District Legal Services Committee will also look into the issue of the release of under trial prisoners in compoundable offences, the effort being to effectively explore the possibility of compounding offences rather than requiring a trial to take place.” 

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Hindustan Times  reports that the state government has decided to offer legal and financial help to as many as 1,641 prisoners, who, in spite of being granted bail, have been languishing in jail for want of assistance to complete formalities. This step will also be a move  towards decongesting the prisons.

It was deputy chief minister Devendra Fadnavis who made this announcement after chairing a review meeting of home department officials at Mantralaya on September 26. Now that the decision has been taken, it is to be seen how quickly the jail bureaucracy steps in and implements the decision.

Fadnavis, who also heads the home department, also ammounced that Majarashtra’s e cyber security infrastructure will be strengthened while 20,000 police personnel will be recruited in the next two years. “The state recruited 5,297 constables in 2019, and the process to hire another 7,231 personnel is under way. Besides, 10,000 constables will be recruited to replace those who had retired till December 2021. A proposal in this regard will be placed before the cabinet soon.”

The home department has also been asked to complete the second phase of installation of CCTV cameras in Mumbai within one month.

The post In jail in spite of bail, 1,641 inmates to be released with govt’s financial assistance: Maharashtra appeared first on SabrangIndia.

On July 31, 2022, Supreme Court Judge Sanjay Kishan Kaul delivered a speech at the valedictory ceremony of the First All India District Legal Services Authorities Meet, encouraging all the subordinate judiciary to deal with the bail pleas with urgency otherwise in his opinion even 500 years would not be enough to see an end to the issues of pendency of cases.

According to LiveLaw, Justice Kaul said, “The sheer volume of pendency to my mind is creating an impediment. If every case has to be tried till the end; every first appeal has to be heard by the courts; if every matter transcends itself to come into the Supreme Court, why 200 years, 500 years we will also not see the end of this litigation.”

As reported by The Hindu, as of May 2022, over 4.7 crore cases are pending in courts across different levels of the judiciary. Of them, 87.4% are pending in subordinate courts, 12.4% in High Courts while nearly 1,82,000 cases have been pending for over 30 years.

During the Monsoon Session of the Parliament, Rajya Sabha Member of Parliament Shri Neeraj Shekhar asked about the details pertaining to the pending cases in High Courts. The answer given by Minister of Law and Justice, Shri Kiren Rijiju reveals that out of 17,37,701 cases filed in 2021, as any as 14,41,136 were disposed of, meaning that just under 3 lakh cases remained pending at the end of 2021. Next, as on June 30, 2022, out of 9,36,035 cases filed till then in 2022, as many as 8,58,589 have been disposed of so far in the high courts. The Ministry’s answer further reveals a very concerning number of 59,66,274 pending cases (both civil and criminal) in the High courts in total, which includes cases accumulated over the years and carried forward.

A copy of the Parliament Question may be viewed here: 

Coming back to Justice Kaul’s speech, the legal luminary delved into the role of the Legal Services Authorities, and said that legal assistance should not be idealistic but practical. He reportedly stated, “Acquittal is one aspect. His case should go for remission, is another. These two are mutually exclusive. Sometimes you know there is no merit in appeal but you pursue to bring quietus. Going on the remission side would be efficient.”

Courts on frivolous litigation

In the case of Properties Pvt. Ltd. V. Chetan Kamble (2022) SCC OnLine SC 246, a three-judge Supreme Court bench of CJI NV Ramana, AS Bopanna and Hima Kohli had observed, “Although the jurisprudence of Public Interest Litigation has matured, many claims filed in the Courts are sometimes immature. Thousands of frivolous petitions are filed, burdening the docket of both this Court and the High Courts. Noble intentions behind expanding the Court’s jurisdiction to accommodate socially relevant issues, in recent decades, have been critically analyzed. In our view, PIL litigation has had a beneficial effect on the Indian jurisprudence and has alleviated the conditions of the citizens in general. For those at the receiving end of the Court’s directions, we can only advise “C’est la vie”.”

Then again in June 2022, terming a petition filed “in the public interest” as frivolous, the vacation bench of the Supreme Court, said the state cannot be prevented from making necessary arrangements to provide basic facilities to lakhs of devotees visiting the temple and construction activity being carried out by the Odisha government at the famed Shree Jagannath temple in Puri is necessary in larger public interest. The vacation bench of Justices BR Gavai and Hima Kohli rejected the PIL filed by Andhendu Das (Ardhendu Kumar Das vs State of Odisha, 2022) and imposed a fine of Rs. 2 lakh on the appellants.

The bench observed, “We are of the view that the present proceedings are a luxury litigation by warring groups to grab control over the management of the Trust. We deprecate this practice of filing such luxury litigation.”

Last month, the Bombay High Court reprimanded a Pune resident, seeking second review of the court’s earlier decision, stating that the petition was without merit and constituted abuse of process and law. A penalty of Rs. 1 lakh was imposed on the petitioner, reported LiveLaw. The court reportedly stated, “Since 2009, till date valuable time of this Court had been consumed by the petitioner by filing frivolous litigation. This is a classic example of abuse of process of Court as well as law, wherein, the petitioner has left no stone unturned to abuse the process not only by preferring second review which is not tenable in law, but also by filing multiple proceedings before different Courts. The petitioner had suppressed pendency of Writ Petition in the Supreme Court before this Court and, therefore, he can be said to be guilty of suppressing of material facts, which also amounts to abuse of process of Court as well as of law.”

The Court further held, “Such tendencies need to be nipped in the bud by imposing exemplary costs. Such elements cannot be permitted to take the system for a ride by filing unmerited multiple proceedings and to drag the proceedings endlessly.”

With the aim of relieving the higher judicial fora from additional burden, Justice Kaul suggested that the litigation should be closed at the first stage itself. According to him, the accused persons must be made aware of the plea-bargaining and mediation mechanism, as they are more likely to take that option, rather than insisting on seeking acquittal.

LiveLaw further quoted Justice Kaul as saying, “Truly if asked and if they have been actually guilty of the offence whether proven or not, they according to me would be more than willing to go through a plea-bargaining. But the system has not been able to guide them or make them aware of plea-bargaining. It is necessary that the judges and the defence system that is now being set up consciously make available this plea-bargaining mechanism and make them aware of it. This is one aspect. Along with plea bargaining is also mediation.”

In his speech, he expressed his concern over the judicial process and stated that the process should not be the punishment. In his opinion, keeping people behind bars is not the solution and this mindset of the prosecution needs to be changed. According to him, the members of the judiciary get easily influenced by the prosecution’s mindset.

He further suggested adopting a different approach for less heinous and more heinous offences. In his opinion, offences of seven years and less or even those up to 10 years can be in one category and new techniques can be applied to put an end to these matters at the earlier stages, so that the judges can concentrate on the life sentence cases and those involving more heinous offences, reported LiveLaw.

He further pointed out how our judicial system does not have sufficient time to prosecute for perjury if any witness lies at the witness box. He drew an example from other jurisdictions where the consequences are so harsh that even the most eminent persons would not dare to lie in the witness box.

He expressed his concern over the loss of precious judicial time as the criminal justice system fails to close the litigation in some cases at the very first stage by offering compensation as provided in the Criminal Procedure Code (CrPC). Finally, the parties agree to settle when the cases go up to the Supreme Court. Had such compensation been offered to the victims at the initial stage, time would have been saved. He reportedly said, “I agree, there has to be a realisation of the victimology principle. I also believe that there is a responsibility towards the victim. In some cases, suppose of hurt or grievous hurt after passage of time they settle; compensation is the methodology. The procedure of compensation is available, but the question is do we utilise it.”

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Preventive Detention: Two judgements, two contrasting views, one judge

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Lucknow: The strength of undertrials in Uttar Pradesh prisons is three times more than that of convicts, which explains why the jails are overcrowded.

As per the prison department reports, a total of 1,12,480 prisoners were lodged in 64 jails across the state as on March 31, 2022, and 85,181 of them were undertrials, whose strength was more than three times the strength of convicts (27,299).

Of the total undertrials, 78,152 were male, 3,291 female prisoners, 3,281 minors and 305 foreigners.

Besides, 400 children (186 boys and 214 girls) were also staying with undertrial women inmates in jails.

The undertrials constitute nearly 76 per cent of the total jail population.

Of the 85,000 undertrials, nearly 850 of them have been behind bars for over 10 years without being pronounced guilty, the report said.

The Supreme Court, last week, had chided the Uttar Pradesh government for not taking steps for the release of undertrials jailed for more than 10 years despite the court’s earlier directions.

The apex court also pulled up the Allahabad High Court for not deciding the bail petitions expeditiously.

Prime Minister Narendra Modi has also urged the country’s judiciary to speed up release of undertrials who were languishing in jails, awaiting legal aid.

Former Director General of Police Sulkan Singh, who also served as IG (prison) and also heads a panel on prison reforms, said an increasing number of undertrials, with hundreds of them being in jails waiting for bail for more than a decade, was a serious reflection on the judicial system.

“There are mainly two reasons for this situation. First, lower courts do not adhere to the legal doctrine of ‘bail is the rule and jail is an exception’, propounded by the Supreme Court long back. Second, cases are not decided expeditiously in courts,” he said.

An amendment to the Criminal Procedure Code (CrPC) in 2008 provided that police would not arrest accused for any offence where the possible maximum sentence is seven years or less, unless cops have apprehensions that the accused may flee or intimidate witnesses etc.

The UP DGP office also circulated the amendment to the district police chiefs and others for compliance. The objective of the CrPC amendment was to save innocent people from being jailed and harassed but the same amendment was faulty, he said.

“The amended law requires the police to record reasons for arrest of an accused as well reasons for not arresting him,” he pointed out.

“Because of this contradiction, police often unnecessarily arrest the accused to avoid charges being levelled against them,” he added.

DIG (prison headquarters) Shailendra Maitreya said the data on the number of undertrials being in jails for offences with sentence up to seven years was not yet available but a good number of undertrials in UP jails might belong to this category also.

Another statistical report on the prison population since 1901 shows that the number of undertrial prisoners always used to be lower than the number of convicts.

There were only 1,645 undertrials against 27,527 convicts in 1909. But the gap started narrowing down after Independence and the number of undertrials rose to 11,746 against 14,609 convicts in 1948.

In 1972, the population of undertrials (19,061) exceeded that of convicts (18,787) for the first time and the gap continues to widen since.

“The number of undertrials was lower earlier, especially during the British period, which shows justice was quick then,” said a high court lawyer and added that “A fast-increasing number of undertrials is surely a travesty of justice.”

Courtesy: The Daily Siasat

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Speaking at the Ambedkar Jayanti lecture organised by Community for the Eradication of Discrimination in Education and Employment and telecast on LiveLaw on April 14, Orissa High Court Chief Justice S Muralidhar on Thursday said laws are structured to discriminate against the poor and that the system works unequally for the poor and the rich. “There are many barriers to accessing justice that a marginalised person faces,” Muralidhar said. “The system works differently for the poor. The laws and processes are mystifying even for an educated literate person. The laws are themselves structured to discriminate against the poor,” Chief Justice Muralidhar said. “Muslims and people from the Scheduled Caste and OBC communities formed the majority of those facing trials and convicted in the country,” he pointed out. 

The Video may be viewed here

He made the remarks while delivering a lecture on the topic “Appearing In court: Challenges In Representing The Marginalized”, to mark the 131st anniversary of BR Ambedkar. In his lecture, Justice Muralidhar pointed out that 55% of the 3.72 lakh people in India who are awaiting trial, belong to the Scheduled Caste and Other Backward Classes, Live Law reported. 

Of the 1.13 lakh convicts, 21% belong to the Scheduled Caste and 37.1% to the Other Backward Class category, Muralidhar said. More than 17% of those under trial and 19.5% of the convicts are Muslims, the Odisha High Court chief justice said.“ Yet these are the persons who are likely to find it difficult to come forward to fight for their rights,” he said.

He added that many people who are under trial continue to remain in jail despite being granted bail because of their inability to arrange surety bonds. Justice Muralidhar also expressed concern on the quality of legal aid in the country for those unable to afford legal representation.

“The lack of confidence in the legal aid lawyer is a reflection of the general approach to welfare services by the providers,” he further said. “I call it the ration shop syndrome. The poor believe that if you get any service for free or it is substantially subsidised, then you cannot demand quality.”

“The system works differently for the poor. The beggars’ courts, the Juvenile Justice Boards and the Mahila Magistrate courts are the first point of encounter for the poor with the legal system,” he said

The chief justice also cited a study that found that human rights lawyers belonging to Dalit and Adivasi were labelled as “Maoist or Naxalite lawyers”. “Their experience tells them that it [the legal system] operates to oppress them and they have to devise ways to avoid it rather than engage with it,” Muralidhar said. “We need to revive discussions around decriminalising many of the surviving activities of the poor.”

Emphasising that Constitution acknowledges persons who by birth, descent, caste and class have been denied justice over generations, he said it also envisages the State to come up with affirmative actions to redress such historic injustices. “These include those belonging to the SC, ST, Dalits, Adivasis, socially and educationally disadvantaged classes, economically deprived classes and a whole host of others, including religious and sexual minorities, differently abled and children in conflict with the law,” he said. “Then there are status offenders – sex workers, mentally ill and many others whose very existence and every activity is criminalised and, therefore, very often find themselves on the wrong side of the law. Thus, begging, street dwelling, and prostitution are all treated as law and order problems.”

“It is a matter of concern that in at least 20 states in India, there are still anti-beggary laws. Only in Delhi and J&K have these laws been struck down by judicial verdicts. Then there are de-notified tribes who have for long been the victim of police atrocities. Those coming in conflict with the law in these situations are invariably those below the poverty line and high-risk groups for whom legal aid is an absolute necessity.”

Stating that structures that marginalise a sizeable section of the population are yet to be dismantled, Chief Justice Muralidhar asserted that this is why we still have amongst us those engaged in manual scavenging, sewer cleaning or forced labour doing all our dirty work “at the cost of their dignity and right to life”.

Talking about how to meet the challenges, the Chief Justice said that the marginalised largely view the legal system as irrelevant and as a tool of empowerment and survival. “Their experience tells them that it operates to oppress them and they have to devise ways to avoid it rather than engage with it. We need to revive discussions around decriminalising many of the surviving activities of the poor,” he said.

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