PUCL Bulletin, May 1981

Anticipatory Punishment

Though the theory of Indian law provides for antici-patory bail, its practice prescribes anticipatory punishment. In Indian prisons about 90,000 prisoners were reported to be held without trial during 1980. According to the government's own admission, only 41.5 percent of all prisoners in the country in June 1979 were convicts-the remaining 58.5 per cent being undertrial prisoners. Since then their number has been rising steadily following large scale arrests under the Disturbed Areas Act, the National Security Ordinance and Act, and a number of preventive detention laws enacted by various state governments. Consequently', according to unofficial estimates, the undertrial prisoners, account for about 65 per cent ot the total Indian jail population.

In almost every jail, undertrial prisoners far outnumber the convicts. In Lucknow and Secunderabad jails they are reported to account for 80 percent of the total jail strength. It has also been observed that in the majority of cases people have spent more years in jail than they would have, if they had been convicted. And it is a big 'if', since a study of Bangalore prisons showed that half of those tried were acquitted, and of those convicted 75 percent were sentenced for less than six months each, and only 6.4 percent were sentenced to more than one year's imprisonment

Jails in almost all states are said to be full of men, women and children who have been languishing there for years awaiting trial for petty offences. Among them are those who happen to be mere witnesses to a crime. To save themselves the trouble of tracing them down later, the police chose to detain them. Those facing serious charges are comparatively few. At one stage in the Madras Central jail, for example, only 3 per cent of those tried were charged with serious offences.

The plight of political prisoners is even more disturbing. Most have been denied the status of a political prisoner, and given the lowest possible treatment under class C. Since they are listed as ordinary prisoners, it is difficult to assess their numbers.

The arrears of cases against undertrial prisoners have been growing so rapidly that all the jails have more inmates than they have room for. In Delhi's Tihar jail, the number of inmates is almost three times its capacity.

Apart from a large number of detentions under PD Acts, the lack of sufficient number of 'dispensers of justice' has also complicated the problem. By the government's own admission the number of crimes has nearly trebled since Independence. But the number of courts has not increased proportionately. Still worse is the fact that many of the undertrial prisoners are charged with bailable offences. But since they do not know the law and nobody bothers to tell them about the provisions of bail, they keep languishing in jails.

But even in cases where people have been aware of the law and their rights, a number of instances of prolonged imprisonment during the trial period can be cited. In the famous Parvathipuram case, for instance, 50 accused spent more than nine years in jail-only to be acquitted by the High Court later. It is indeed intriguing that with such enormous capacity to imprison people and for such long periods, the government decided to add another weapon in its armoury-the NSA.

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