Delays in the Criminal Justice Process: Consequences for Undertrial Prisoners and Their Families

Introduction

The Criminal Justice System (CJS) in India is characterised by innumerable arrests, overcrowded jails, and courts with lakhs of pending cases. According to the Prison Statistics 2015,¹ there are around 4.19 lakh prisoners in the country with around 67 per cent being undertrial prisoners. There are a number of reasons that are beyond the scope of this chapter, which have led to the current crisis in the system.² Some of these problems include a poor judge-population ratio, lack of prompt and competent legal aid services, delays in filing of chargesheets, unnecessary adjournments in the trial process, witnesses not turning up in court, delays in submission of forensic evidence, non-production of undertrial prisoners on their court dates due to lack of police escorts, and so on.³

Prison populations have remained at the margins of welfare and development and have seldom been viewed to be in need of or deserving of social services. With the development of criminology as a discipline, a gradual shift has taken place whereby the individual alone is no more held responsible for norm or law-violating behaviour. This shift has led to law and policy changes advocating a moving away from torture and debilitating forms of punishment, imprisonment as punishment and not for punishment, more humane custodial conditions, protection of legal and human rights, and finally a focus on retraining, rehabilitation, and social re-entry. The prison welfare and rehabilitation measures were established keeping in mind the convicted prisoner, as prisons were primarily meant to house those convicted by law for the offences they were charged with. A minor focus of prisons was the housing of undertrial prisoners—those awaiting trial and kept in judicial custody till the completion of their cases in courts. However, one fact that the authorities and civil society did not take note of for a long time was the rising number of undertrials in the prisons of our country.⁴

This chapter tries to capture the situation of undertrial prisoners on account of delays in the trial process and its impact on their family situation. Since the chapter is largely based on the situation of undertrial prisoners in Maharashtra, it would be in order to present some snapshots of the situation of delays in the trial process of undertrials in the state. The data presented here is based on the information available in the National Judicial Data Grid (NJDG), as on 29 January 2019.

table 2.1.1. Proportion of Pending Criminal Cases in Maharashtra

As per Table 2.1.1, it emerges that the percentage share of criminal cases takes the lion’s share of the total number of pending cases across categories in terms of number of years. It must be noted that these cases include cases where the accused is out on bail.

If one refers to pendency of cases of undertrials languishing in prison, the situation presents a better picture. As per the data available in Prison Statistics India Report 2015, out of the 21,667 pending cases with undertrial prisoners as on 31 December 2015, the pendency of cases was as shown in Figure 2.1.1.

The figure shows that almost 50 per cent of the cases were pending for less than six months and nearly 70 per cent cases were pending for up to a year. The data also reveals that about four per cent cases were pending between three to five years, and less than one per cent cases were pending beyond five years.

It would also be interesting to look at the pendency of criminal cases and how many cases remain pending at each age bracket. This is presented in Figure 2.1.2.

Figure 2.1.2 reveals that 60 per cent of cases remain pending for less than three years, and about 10 per cent of the cases remain pending beyond 10 years.

figure 2.1.1.Pendency of Cases with Undertrial Prisoners

figure 2.1.2.Pendency of Criminal Cases in Maharashtra: According to Age

table 2.1.2.District Wise Pendency of Cases as on 29 January 2019

Table 2.1.2 reiterates the finding that the number of pending criminal cases is leading to an increase in the total number of pending cases. The lowest percentage share of criminal cases to total cases pending are in Mumbai City Civil and Sessions Court (25 per cent), Sindhudurg (37 per cent), Osmanabad (49 per cent). While the highest percentage share of criminal cases to total cases are in Mumbai Chief Metropolitan Magistrate’s Court (100 per cent), Wardha (83 per cent), and Chandrapur (77 per cent).

It would be interesting to do a study to find out the reasons why these districts show the lowest and highest number of pending criminal cases.

My first interaction with undertrial prisoners was when I was a student of social work (with specialisation in criminology and correctional administration) at TISS from 1988 to 1989. I was placed in the Baba⁸ Barrack of Arthur Road Prison for field work training by my faculty supervisor in the second year of my master’s programme at TISS. It was during this period that I first learnt about the situation of undertrial prisoners. Mumbai is known as the commercial capital of the country. It is also known as the hub of economic offences, organised crime and gang rivalries, and the parallel economy.⁹ Arthur Road Prison is, therefore, a natural destination for housing dangerous criminals, alleged gangsters, film stars, politicians, and businessmen accused of committing various crimes.

The Approach

It is in the foregoing context that this chapter becomes important. While there is quantitative data available from official sources and academic studies on the situation of undertrial prisoners, there are few studies that give us an insider’s perspective about the reasons leading to delays in processing of cases of undertrials. This chapter is written based on my experiences of being associated with Prayas, a field action project of the Tata Institute of Social Sciences (TISS), which has been working with undertrial prisoners in the young male and women’s sections since 1990. The project aims to protect the legal rights of undertrial prisoners and rehabilitate them.5,6 I was the first social worker appointed for the project and worked at the Arthur Road Prison (otherwise known as the Mumbai Central Prison) from 1990 to 1993. Since then, I have continued being part of the Prayas team in various capacities. I have drawn from my experiences as well as the experiences of my teammates for this chapter. I have also drawn from the work of Praveen Kumar, a TISS alumnus who is a TISS Criminal Justice Fellow, working with undertrial prisoners in Patna, Bihar, since 2015.7

My first interaction with undertrial prisoners was when I was a student of social work (with specialisation in criminology and correctional administration) at TISS from 1988 to 1989. I was placed in the Baba8 Barrack of Arthur Road Prison for field work training by my faculty supervisor in the second year of my master’s programme at TISS. It was during this period that I first learnt about the situation of undertrial prisoners. Mumbai is known as the commercial capital of the country. It is also known as the hub of economic offences, organised crime and gang rivalries, and the parallel economy.9 Arthur Road Prison is, therefore, a natural destination for housing dangerous criminals, alleged gangsters, film stars, politicians, and businessmen accused of committing various crimes.

Socio-legal Consequences of Arrest

The first lesson I learnt (during my student days and later as a social worker with Prayas) while working with undertrial prisoners in the Baba Barrack was that there were two types of undertrial prisoners— those with family and/or financial support and those without. The rights of undertrials enshrined in the Constitution, Code of Criminal Procedure, 1973 (CrPC), and prison manuals are accessible mainly by the first category. They have access to a decent lawyer; their family members often come for mulakat,¹⁰ and they invariably meet their family and friends on their court dates; some of them have access to home cooked food;¹¹ many of them hardly ever miss their court dates (as police escorts are invariably available for them to be taken to court); they have money (through money orders sent by their family members¹² or money brought illegally inside) to buy coupons for purchase of daily use items from the prison canteen;¹³ and they can grease the palms of prison officials or the convict warders¹⁴ to get a better place to sleep in the barrack which has more air and lighting, or is away from the toilets. Most importantly, their chances of getting released on bail are higher, as they are able to arrange suitable sureties or cash amount required to satisfy the bail conditions, once passed by the courts. Once out on bail, their trials take longer (years) as cases of undertrial prisoners get priority over those out on bail. In such a scenario, their chances of getting discharged or acquitted are higher for reasons such as their witnesses not turning up in court (getting ‘lost’ due to the passage of time) or turning hostile on account of undue influence by the accused; and the investigation officer not turning up to present the evidence on account of getting transferred to another police station (outside the jurisdiction of the court or to another city or district).

The situation of undertrial prisoners who have weak or no family support or financial backing is very different from the situation described previously. First, they have no or poor legal representation. Often times, a lawyer comes forward and signs the vakalatnama¹⁵ within the first few days of arrest. The lawyer’s name is often suggested to the undertrial by a police officer or a constable from the police station or in court. The lawyers take whatever money the undertrial prisoners are able to arrange through their family or friends, with the promise of getting them out on bail. Such lawyers usually appear in court on the behalf of the undertrial prisoners on their first one or two dates and vanish once they are transferred from police custody to the prison (judicial custody). These undertrial prisoners have their ‘advocate on record’ but no one appears on their behalf on their subsequent court dates. Magistrates often do not take note of this breach of trust and go along with the case, especially during the period when the undertrial prisoner is a remand prisoner.¹⁶ Then there are others who simply do not have a lawyer to represent them in court and the impasse continues till the legal aid system kicks in or the magistrate/ judge takes notice, or a civil society organisation intervenes. There are also those who have lawyers appointed by their families but their appearance on court dates are irregular and they hardly ever communicate the status of the case to the prisoners or their family members. The situation of women undertrial prisoners is far worse, owing to the fact that most women prisoners have very little formal education, are often unaware of their legal details, and have little family support to speak about. The long and short of this story is that there are a large number of undertrial prisoners who have little or no agency vis-à-vis their trials in court, and it finally depends on whether the magistrate or judge takes cognisance of the same and takes corrective measures like asking the District Legal Services Authority to appoint a lawyer. Prayas’s experience over the last 28 years shows that about 20–30 per cent of undertrial prisoners have no legal representation or lack proper legal representation in court.

More than 70 per cent undertrial prisoners in our experience come from family backgrounds characterised by poverty and marginalisation. As per Prison Statistics India Report 2015, more than 80 per cent of prisoners belong to SC, ST, OBC, and Muslim communities.¹⁷ Raghavan and Nair’s study¹⁸ on the situation of Muslims in prisons of Maharashtra highlights their situation which is characterised by poverty, marginalisation, discrimination, and lack of access to legal and social services. Prayas’s experience shows that most undertrials languishing in prison live in abject poverty and their family situation is complicated by issues such as large family size, marital conflict, family violence, alcoholism, and mental health issues. A significant number of undertrial prisoners, especially in cities, are migrants with their families living in their native places. In this complex scenario, it is but natural that mulakats are few and far between, they do not receive money orders, court visits by family members are infrequent (but better than prison mulakats) and there is no one to follow up on the progress of their cases with their lawyers.

Owing to the lack of social and financial support, these undertrial prisoners are at the receiving end of the prison system, unless a prison official, a convict warder, or a gang member takes the person under their tutelage. In prison, if one does not have money or a ‘godfather’, one is likely to end up living in the most crowded and unhealthy spot in the barrack, getting little medical attention (unless the prisoner develops a serious injury or ailment which could be life threatening), missing court dates frequently (due to lack of police escorts), and being a victim of sexual advances or abuse. The prisoners who are likely to be treated the worst by other prisoners and the prison administration include those arrested for sexual violence, especially rape cases, and drug charges, especially those who are arrested for consuming or trading small quantities. This is due to the hierarchy of offences that characterises the moral world of the prison sub-culture.

Due to this binary division of prisoners into haves and have-nots, the system seems to be giving a message to the lower order prisoner and the message is clear: if one wants to be treated like a human being with some rights, one has to have financial resources at one’s disposal or rise up the crime ladder. Petty offenders or first-time offenders with poor family support have no place in this system. I remember an undertrial prisoner telling me, ‘Sir, yahan kuch bada kar ke aana chahiye. Chhote mote criminal ko koi nahi poochhta. Usey to yahan sadna padega. Agar kuch bada karke andar aao, toh aapke pass paisa aur log honge. Aapke pass achha lawyer hoga. Jailwale aapko respect se baat karenge … agli baar kuch bada karke aaoonga [Sir, if you come here, you should commit a major crime and come in. Small time criminals have no existence here. He has to languish inside. If you commit a big crime and come in, you will have money, a good lawyer and people around you. Prison officials will speak to you with respect … next time, I will come in for a serious offence.]’

Source: Case records of Praveen Kumar, TISS Criminal Justice Fellow (June 2015 to May 2019).

Children Living with Their Mothers in Prison

It was during the initial years (1990–1991) of Prayas’s work in the women’s section of Arthur Road Prison that issues relating to children living with their mothers in prison came to our notice. Contact with the adult criminal justice system can be detrimental to children and families. Children below six years are allowed to live with their mothers in prison, if there is no one to take care of them outside. Living in custody with women prisoners can never be normal for any child of six years or below. Many children are born in prison and they do not experience a normal childhood, sometimes till they complete six years of age. Due to their prolonged stay in a negative and custodial environment, their socialisation gets negatively affected. The only male figures they see are that of police and prison officials. They do not know what a normal home is, and have been found to be behaving and talking like women, with whom they spend all their time. They have been known to scream in fear at the sight of stray dogs or cows they may see on their way to the court while accompanying their mother. They face physical abuse on the hands of their mothers who sometimes take out their frustrations on their children. Observations of Prayas as well as other NGOs like India Vision Foundation (working with children of women prisoners in Tihar Prison) reveal that these children suffer from low self-esteem, and display violent or aggressive behaviour, while some of them are shy and withdrawn.

Every time the mother gets transferred from one prison to another, the children have to adjust to a new surrounding and make new relationships, which can be a very unsettling process at this tender age. Once the children attain six years of age, they are not allowed to stay with their mothers in prison as per the prison manual. The mother and children have to face the trauma of separation during such times and they are either transferred to child care institutions or to the care of a guardian or a caretaker. Undergoing so many changes during their early childhood phase can have a long-lasting negative impact on the personality of these children.

Children Left Outside

One of the major findings from Prayas’s work with undertrial prisoners has been the mental stress and agony they go through on account of not knowing the situation of their close family members, especially their children left outside. This is especially true in the case of women undertrial prisoners. The first question that a woman undertrial prisoner with children would ask the social worker is whether she can find out the situation of her children left outside. Women get worried sick wondering how their children are in the absence of communication with their families. Prayas’s work and a study conducted in 2002 reveal that the situation of children of women prisoners left outside is precarious. Children have been found to be eating infrequently with not enough to eat, falling sick more often and lacking medical care, sleeping outside the house (with ‘caretakers’ taking over their house), dropping out of school, running away from home or eloping with a lover, dealing with the stress of going for mulakats or court visits, having to handle the lawyer’s demands for money or documents, and taking care of each other, especially their younger siblings at home.²⁰

In the absence of guardians or caretakers, children of prisoners get admitted to child care institutions where they have to stay till they complete 18 years of age or till their parent gets released from prison and claims them back from the Child Welfare Committee, whichever is earlier. If there are two or more siblings, they may get separated by being admitted to different institutions, due to lack of space in the same institution. This may happen more often if the siblings are of different sexes. In such situations, entire families may get separated from one another for long periods of time—the parent/s in prison, the siblings living in different institutions. It is the responsibility of childcare institutions to arrange regular mulakats between the children and between the parent/s in prison and their children, but this often does not happen or happens rarely, due to institutions being short-staffed or simply uncaring.

The mulakat process between the children and their parent/s is often a stressful exercise, especially if it is done across a wire mesh or glass partition. The mulakat room is a noisy place with too many people trying to communicate with each other at the same time, the time allotted for mulakat is often too less (due to pressure on the prison staff of too many people whose mulakats have to be arranged on any given day) and the children end up feeling very dissatisfied at the end of the meeting, with both sides ending up in tears feeling depressed.

The situation of children in spousal murder cases is particularly disturbing. Often, the children live with the grandparents or families of the murdered spouse, and they influence the children against the parent in prison. We have come across dozens of cases where the mother in prison pines for her children but is unable to meet them, as the deceased husband’s family either does not allow them to meet the mother or the children ‘learn’ to despise her for murdering their father. In some of these cases, the child may have been a witness to the murder and has to undergo the additional stress of deposing before the court as a child witness. The trauma of witnessing the murder and the stress of taking sides (of one parent against the other), especially if the child is slightly older, can have long-term and deep psychological impact on the child.

Source: Prayas, TISS.

Social Stigma

Goffman’s pioneering work on stigma,²¹ drawn extensively from autobiographies and case studies, defines stigma as ‘attributes that are deeply discrediting’ to the individual. Through his work, he drew out the strategies used by stigmatised individuals to deal with social rejection. The consequences of social stigma include ‘abominations of the body’ (physical deformities), ‘blemishes of individual character’ (societal labelling through records of unemployment, imprisonment, mental illness, homosexuality, etc., and being perceived as weak-willed, treacherous, dishonest, etc.), and ‘tribal stigma of race, nation, and religion’ (contamination of all members of the particular family through lineages). The person is first stigmatised through a process of interaction between the individual and the social audience, leading to he/she becoming what the stigma implies. Once stigma is applied, it is very difficult to overcome it.²²

While theoretically, an undertrial prisoner is ‘innocent until proved guilty’, in reality every prisoner, under trial or convicted, is likely a victim of social stigma. Not only does the undertrial prisoner suffer from stigma and social exclusion, his/her family also have to suffer a similar fate, especially children of the prisoners. Some of these issues have been highlighted in earlier sections. In my experience, families of undertrial prisoners have had to face a range of consequences, such as:

1. Taunts and hostile responses from neighbours;
2. Loss of job or disruption in business on account of having to go for mulakat, attend court dates, or meet the lawyer;
3. Physical and mental health problems due to the stress of dealing with the arrest and trial process of the undertrial family member;
4. Drastic reduction in the family income because of the bread winner being in prison;
5. Compelled to move to another area of residence on account of not being able to pay the rent.

The problems faced by family members of women undertrial prisoners are far greater and complex. In a patriarchal society, ‘wrongs’ committed by men are forgiven but women and their families have to face lifelong character assassination and social exclusion. For example, in the case of women arrested in spousal murder cases, the children mostly end up being raised by the marital/spousal family who discourage any contact between the children and the mother, leading to scarring of the children’s psyche. Even in property offences, rejection by family members in case of women prisoners are much higher than in the case of men. This has serious implications in terms of post release problems faced by women prisoners, especially with regard to shelter and social networks. Our experience has shown that lack of stable shelter and relationships can lead to increased dependence on anti-social and exploitative elements which leads to getting enmeshed in a life of crime and sexual exploitation.

Social Exclusion and Denial of Citizenship Rights

The situation of prisoners (including those of undertrials) fits well with the definition of poverty and social exclusion given by Amartya Sen,²³ whereby he defines it as a symptom of existing social problems and an inability to achieve full human potential due to the lack of access to public goods and services. He, therefore, views social exclusion as capability deprivation that includes material (food security, housing, education, etc.) and non-material (access to social relations, voting rights, etc.) deprivations. He further emphasises that human living implies life of dignity and self-respect, and structural barriers that make living with dignity difficult are key elements of poverty arising out of social exclusion. Our work with undertrial prisoners has revealed that a large number of them do not have access to citizenship documents such as voter identity card, caste certificate, ration card, or even a bank account. The absence of these documents leads them to be treated like non-citizens, and their life and work encounters take place outside the pale of the formal sector. Many of them have no access to formal housing, government schemes, bank loans, health insurance cards, or voting rights. Prayas workers have to often struggle to even get their bank accounts opened, which is a stepping stone to enter the formal sector.

Conclusion

It can be seen from this chapter that a large majority of undertrial prisoners come from extremely poor and marginalised backgrounds. They have little access to legal aid or resources to get a fair chance vis-à-vis their cases in court, their family and social networks are weak and their stay in prison is characterised by isolation, stress, and negative experiences. Their families, especially their children, go through economic and social hardships, and find it hard to deal with the consequences of the arrest and imprisonment of their family member. Social stigma and exclusion associated with imprisonment negatively impacts the lives of undertrial prisoners and their families, turning them into non-citizens over a period of time. Given the fact that many of these cases end up in discharge or acquittal, there is an urgent need to take steps towards ensuring that they do not languish in prison and their families get adequate support to deal with the socio-legal consequences of the arrest and imprisonment of their near and dear ones.

Notes

1. National Crime Records Bureau. 2015. Prison Statistics India Report 2015, available online at http://ncrb.gov.in/statpublications/psi/Prison2015/Snapshots-2015_18.11.2016.pdf (accessed on 7 December 2018).
2. V. Raghavan. 2016. ‘Under Trial Prisoners: Long Wait for Justice’, Economic and Political Weekly, LI (4) (January 23): 17–19.
3. V. Raghavan. 2015. ‘Indian Criminal Justice System: Voices from Field’, Indian Police Journal, 42(1): 4–15.
4. Raghavan, ‘Indian Criminal Justice System’.
5. V. Raghavan and S. Menezes. 2017. ‘Prayas: Demonstrating Criminal Justice Social Work’, Indian Journal of Social Work, 78 (2): 225–254.
6. V. Raghavan. 2013. ‘Social Work Intervention in Criminal Justice: Field Theory Linkage’, in S. Singh (ed.), India Reader, pp. 265–289. Lyceum Books: Chicago.
7. For details, see http://www.tiss.edu/view/11/projects/allprojects/criminal-justice-fellowship-program/.
8. In most prisons in the country, young male prisoners in the age group of 18–21 or 23 are housed in a separate barrack, to prevent ‘contamination’ and criminalisation of youth and wean them away from ‘habitual’ and gang elements. These barracks are informally known as Bachha Barrack, Kishore Vibhag, or Baba Barrack, which are synonyms to mean young adults in Hindi language.
9. Parallel economy implies the illegal economy run by organised crime gangs comprising activities like gambling, betting, illicit liquor business, extortion, drug trafficking, prostitution rackets, illegal arms trade, etc.
10. A supervised meeting between a prisoner and his/her family members is known as mulakat in prison parlance. Under trial prisoners are allowed to meet their blood relatives once a week and convicted prisoners are allowed this facility once a month as per the provisions of the Maharashtra Prison Manual. These rules are more or less similar across the country.
11. Undertrial prisoners are allowed to eat home cooked food as per prison manuals in most states. In Maharashtra, this rule was changed a decade ago due to concerns of gang leaders allegedly smuggling drugs inside prison, concealed in their tiffin boxes.
12. As per the prison manual, an undertrial prisoner is allowed to receive money from their family members subject to a maximum limit of ₹2,000 per month.
13. The prison canteen is a store from where prisoners can purchase daily use items like hair oil, soap, sanitary napkins, biscuits, snacks, cigarettes, cooked meat (once or twice a week), etc. Prisoners are allowed to buy coupons from the cash received through money orders to purchase these items.
14. Convict warders are convicted prisoners usually serving life imprisonment who are tasked with maintaining order and discipline in the prison, for which they are paid wages and are deemed to be public servants under Section 21 IPC.
15. Vakalatnama is a signed agreement between the accused and a lawyer by which the accused agrees to the lawyer being his/her legal representative in court.
16. A remand prisoner is an undertrial prisoner whose chargesheet is yet to be filed and the trial is yet to have started.
17. National Crime Records Bureau (2015).
18. V. Raghavan and R. Nair. 2013. ‘Over-Representation of Muslims: Prisons of Maharashtra’, Economic and Political Weekly, 48(11): 12–17.
19. Under section 436A Code of Criminal Procedure, an undertrial prisoner who has been granted bail and continues to remain in prison for more than one week is eligible to be released on Personal Recognisance Bond, on the grounds of being indigent.
20. Prayas. 2002. Forced Separation: Children of Imprisoned Mothers. Mumbai: Tata Institute of Social Sciences.
21. E. Goffman. 1963. Stigma: Notes on the Management of Spoiled Identity. New York: Prentice Hall.
22. I. Moyer. 2001. Criminological Theories: Traditional and Non-Traditional Voices and Themes. London: SAGE Publications, pp. 180–181.
23. A. Sen. 2000. ‘Social Exclusion: Concept, Application, and Scrutiny’, Social Development Papers No.1, Asian Development Bank, June, available online at https://www.adb.org/sites/default/files/publication/29778/socialexclusion.pdf (accessed on 9 May 2019).