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UNDERTRIALS TORTURE: A BLOT ON THE FACE OF HUMAN RIGHTS

Updated: Sep 29

Author: Naman Aggarwal, I year of B.A.,LL.B.(Hons.) from Dr. Ram Manohar Lohia National Law University


Human rights are not defined anywhere but metaphorically finds a mention almost everywhere be it Vedas, sacred texts or any other modern-day legal Magna Carta. Albeit of their omnipresent nature, they are just being read but not followed. The worst form of human rights abuse arguably conferred upon the undertrial prisoners. As we saw in a case last year, the father-son duo (P Jayaraj, 60 and J Bennix, 31) were tortured for 7 hours, subject to various rounds of beating and eventually killed in police custody. In the case Sunil Batra v. Delhi Administration (1978), SC adjudicated by directing a writ to the authorities that prisoners should not be subjected to physical mishandling and should be provided with medical and health facilities. But only after a couple of years, a pathetic incident comes to light in a case, named Khatri v. State of Bihar (1980) where the police had blinded 80 suspected criminals by puncturing them with needles and pouring acid on them.


Who are Undertrial Prisoners?

It is crucial to understand who undertrial prisoners (UTPs) are, and why it is necessary to protect their human rights. UTPs are those inmates who are arrested or accused of some criminal offence, and have any pending case on their name but have not yet appeared before the magistrate or been convicted/acquitted by the court. Their offence is yet to be proved and by that time they either be put in judicial or police custody or get bail. According to the estimates of the National Crime Records Bureau, approx. 70% of total jail inmates are UTPs.


Legal Rights Available to UTPs

India is a signatory to various international treaties protecting undertrial prisoners and also ratified them like International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social, and Cultural Rights (ICESCR), Nelson Mandela Rules which legally bound India to follow and subsume the provisions of the treaties or the covenants into the law of the land. Our Constitution also gives the prisoners various rights in the form of fundamental rights, DPSPs etc. Some of the essential rights are enlisted below:

1. Right to Speedy Trial- Implied in Article 21 and adjudicated in case Hussainara Khatoon(II) v. Home Secretary, State of Bihar


2. Right to be informed and meet family members and friends- Implied in Article 21, given under Article 22 and Section 304 of CrPC.

3. Right to have Legal Aid- Implied in Article 21, read of Article 39A with Article 142 and Section 304 of CrPC.

4. Right against Self Incrimination including Narco Analysis/Polygraph/Brain Mapping- Given under Article 20(3) and upheld by the SC in case of Selvi v. State of Karnataka. Also, if subjected to the tests with the consent of the accused even then cannot be presented as evidence in the court.


Solutions to the Plight of Undertrials

The problem is not as big as it seems but just needs some attention and determination from the side of authorities to act upon to resolve the issue. Some of the guidelines or solutions as given by many reports, experts, institutions and my personal beliefs are as follow:

  • Time limit for completion of the investigation as per Section 167 of CrPC should be strictly followed.

  • The saying ‘Bail is the Rule and Jail is the exception’ should be emphasised.

  • Alternatives to imprisonment, for instance, parole should be considered.

  • Visits by their counsels, family, relatives and friends should be allowed on the regular basis for seamless and hassle-free communication.

  • There should also be the provision of giving compensation to the UTPs and other inmates as well whose human rights are being violated.

  • The available powers given to the criminal courts under Sections 309, 311 and 258 of the CrPC to give effect to the right to speedy trials should be exercised and jurisdiction of the High Courts can also be exercised under Section 482 of CrPC and Articles 226 and 227 of the Constitution of India for quick disposal of cases.

  • The DM of the area should visit the jails and review the conditions of the inmates on a regular basis.


The Way Forward

Now after assessing the whole scenario it can be concluded that the human rights abuse done by the authorities on the UTPs is unbearable and should be discarded. Every student right from the higher class or if possible from the elementary school itself should be taught some basic law so they can have some basic knowledge of the Indian legal and judicial system. The separate jails can be set up for the undertrials segregating them from other criminals who have the background of committing serious offences so as to prevent them from the detrimental impact of those hardened criminals and will also help in changing the perspective of the jail authorities and the society towards the undertrials.


Also, the undertrials who are not accused of any grave offences but petty crimes can be put in reformative homes instead of jail. At last, it is only hoped that the nature and behaviour of the jail authorities and the society at large towards the undertrials will change by the passing of time and the harsh treatment they get now will soon be eliminated.