undertrials

Undertrial Bail: Three New Grey Areas Since the BNSS Came Into Force Complicate the Situation

In addition to the grey areas, there is also the fact that the number of people who got bail under the predecessor of Section 479 declined since 2016.

Two weeks ago, the Union Ministry of Home Affairs (MHA) issued an advisory to all states and Union territories (UTs) to be ‘kind and fair’ to ‘undertrials’ while implementing the Bharatiya Nagarik Suraksha Sanhita, 2024 (BNSS).

Readers will recall that the BNSS replaced the erstwhile Code of Criminal Procedure, 1973 (CrPC) in July as part of the NDA government’s programme of ‘decolonising’ criminal laws.

Undertrials are one of the two major categories of prison inmates. They are held in judicial custody until the trial court decides if they are guilty of the offences they are alleged to have committed. Convicts sentenced to varying jail terms depending upon the gravity of the offences constitute the second category. A small number of detenues sent to jail under preventive detention laws constitute a third category.

Depending upon the gravity of the crime(s) and the circumstances due to which they are unable to secure bail, undertrials languish in prison for different periods of time, ranging from a few months to several years.

According to the 2023 report of the department-related Parliamentary Committee on Home Affairs on ‘Prison Conditions, Infrastructure and Reforms’, more than three-fourths (77.1%) of prison inmates in 2021 were undertrials – in other words they remained incarcerated even though no court had judged them guilty.

At the end of 2022, there were 4.34 lakh undertrial prisoners (as compared to 1.33 lakh convicts) in the 1,330 jails located in different parts of the country. The National Crime Records Bureau (NCRB) has not released the figures for 2023 yet.

What does the MHA’s advisory say?

The MHA has written to the chief secretaries and the heads of department of prisons and correctional services across the country highlighting the urgency of implementing Section 479 of the BNSS in order to deal with the problem of overcrowded prisons.

According to this provision, undertrials who have completed at least one half of the maximum duration of imprisonment they would get if found guilty by a competent court, may be released on bail.

Further, undertrials who are first time-offenders and who have not been convicted of any offence in the past are eligible to be considered for release on a personal bond if they have languished in prison for at least one-third of the maximum period of punishment they may attract if found guilty.

The release of undertrials belonging to both categories is subject to certain conditions. However, offenders who are alleged to have committed offences punishable with the death sentence or life imprisonment are excluded from availing the benefit of Section 479.

Also read: How Long Is Too Long for an Undertrial Prisoner To Be Detained?

The MHA points to the statutory obligation of the superintendent of the prison where the undertrial is detained to initiate bail/bond proceedings by moving the appropriate court.

Next, the advisory points to the August 2024 order of the Supreme Court in the ongoing case Re: Inhuman conditions in 1382 Prisons that undertrials against whom cases were registered before the commencement of the implementation of the BNSS in July may also avail the benefit of this provision through the intercession of the jail superintendent.

The MHA reminds all states and UTs that relevant information such as the name of the undertrial, the type of offence(s) allegedly committed, the maximum period of imprisonment possible under the law and the date of completion of one-half or one-third of such a prison term is available on the E-Prison portal for jail superintendents to access at the click of a button.

Last, the MHA reminds the states and UTs about the scheme it had launched in 2023 for providing ‘support to poor prisoners’ who are unable to secure bail due to financial constraints and urges them to ensure that undertrials who are socially disadvantaged or belong to low-income groups are given support to avail this scheme’s benefits.

Is Section 479 BNSS a gift of the ‘decolonised’ criminal law procedure?

The answer to this question is both “no” and “yes”.

In fact, Section 479 of the BNSS has a predecessor in the erstwhile CrPC. Section 436A, which was inserted in the CrPC in 2005 under the UPA government, also permitted the release of undertrials on bail if they had spent at least one half of the maximum prison term they would get if found guilty.

In both the CrPC and the BNSS, the decision to grant bail or not to in such cases is that of the competent court. The public prosecutor must be heard by the court on whether the state opposes the bail application and if so for what reasons. The court’s decision to grant bail to the undertrial against such sureties as it may fix or to reject their application must be in writing.

The BNSS introduces two innovations to this scheme of things. First, Section 479 allows for the release of first-time offenders on bond if they have not been convicted of any offence in the past, subject to the procedure mentioned above. Second, the jail superintendent is now given the duty to initiate this process by moving the bail application in the competent court. Both these provisions were absent in the CrPC.

Undertrials charged with crimes inviting life term in prison deprived of Section 479 cover

Section 479 of the BNSS also waters down its predecessor provision in the CrPC considerably.

The first dilution is with regard to the rights of undertrials who might receive a sentence of life imprisonment if found guilty. Under the erstwhile CrPC, they could also apply for bail under Section 436A. Strangely, Section 479 of the BNSS takes away this right and puts them at par with undertrials accused of crimes that attract the death penalty.

The clause-by-clause explanation of each provision attached to the BNSS Bill, 2023 tabled in parliament does not contain any justification for the deprivation of an important statutory right for this category of undertrials that was available until July 1, 2024.

Nor does the department-related Standing Committee on Home Affairs which vetted this Bill (along with the other two Bills that replaced the Indian Penal Code, 1860 and the Indian Evidence Act, 1872) bother to explain this change in state policy in its report submitted to parliament.

Another major cause for worry in this context is the likely fallout of the August 2024 order of the Supreme Court that is attached to the MHA’s advisory. The court had noted and directed as follows:

“2. Having regard to the fact that the substituted provision under the BNSS is more beneficial vis-a-vis Section 436A of the [CrPC], 1973, wherein the period undergone by the first time offender was prescribed as up to half of the maximum period of imprisonment specified for such an offence, this court had called upon the learned additional solicitor general to obtain instructions from the department and submit a clarification regarding application of the said provision to all undertrials across the country.

3. Today, Ms Aishwarya Bhati, learned additional solicitor general, submits that pursuant to the aforesaid order, instructions have been obtained from the department to the effect that the aforesaid provision under the BNSS shall apply to all undertrials in pending cases irrespective of whether the case was registered against them before July 1, 2024, the date when the newly minted legislation has come into effect.

4. In that view of the matter, it is deemed appropriate to direct immediate implementation of Section 479 of the BNSS by calling upon superintendents of jails across the country wherever accused persons are detained as undertrials, to process their applications to the concerned courts upon their completion of one-half/one-third, as the case may be, of the period mentioned in sub-section (1) of the said provision, for their release on bail. This step will go a long way in easing overcrowding in jails which is the primary focus of this court in the present petition.

5. The aforesaid steps shall be taken as expeditiously as possible, preferably within two months from today. Reports shall be submitted by the superintendent jails to their respective heads of the department within the same time line for a comprehensive affidavit to be filed by each state government/Union territory through their respective chief secretaries. The affidavits shall furnish the details of the number of undertrials who would be entitled to extension of the benefit of Section 479 of the BNSS, the number of applications moved before the concerned courts for their release and the number of undertrials actually released by the date of filing of the affidavits.

6.Compliance of the aforesaid provisions shall be made by the concerned district and session judges in all states/UTs who are in-charge of the Under Trial Review Committees so that there is no laxity in implementation of the aforesaid beneficial provision.”

(emphasis supplied)

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Taken at face value, this direction appears salutary and is intended to give the benefit of the new BNSS provision to both the ‘half-period’ and ‘one-third period’ categories of undertrials who entered prison when the CrPC was in vogue.

However, a deeper examination reveals the likelihood of obstacles arising to prevent their release from jail. Will the jail superintendent forward to courts bail applications for first-time offenders who are accused of crimes that invite life imprisonment even if they were committed prior to the commencement of the BNSS?

Similarly, will undertrials who belong to the half-period category also be considered for bail under the BNSS even if they were charged of committing crime(s) inviting a life sentence when the erstwhile CrPC was the applicable law?

The change in state policy affected by a mere chronological dividing line (July 1, 2024) appears arbitrary as no reasoning is available in the public domain as to why their right to seek bail has been taken away under the BNSS.

This is a grey area the court must address urgently.

Second, under the CrPC, a person accused of committing multiple crimes in the same incident or in separate cases could also apply for bail and the half-period would be calculated based on the length of the prison term each crime would attract.

In September 2014, the MHA issued detailed guidelines explaining the methodology of calculating the half-period for undertrials who were charged with multiple offences inviting different jail terms. According to this advisory, the half-period must be calculated on the basis of the gravest of offences that attract the maximum prison term and not the lesser offences inviting shorter sentences.

Section 479 of the BNSS bars a court from granting bail to a person accused of committing more than one offence in one case or if multiple cases are pending against such a person.

For example, if an individual initially intended to commit robbery only but ended up causing grievous hurt to a victim in the process, as an undertrial he/she would not be eligible for any relief under Section 479 of the BNSS. Similarly, if a person is charged with the crime of forgery in one case and cheating and fraud in a completely different case, the benefit of Section 479 of the BNSS would not be available to him/her either.

The problem that is pointed to above is likely to crop up in this context also. Will undertrials who are charged with committing multiple offences in the same case or in different cases be considered eligible under the one-third period or half-period eligibility provisions if such crimes had been committed prior to the commencement of the BNSS?

If Section 436A of the CrPC were to be applied to them because that was the law in force when they allegedly committed the offence, they could be considered for bail. But if Section 479 of the BNSS is applied as per the Supreme Court’s direction, they could be denuded of this right.

How just and reasonable is this? This is the second grey area the court must address urgently.

Third, Section 479 of the BNSS lacks clarity about the court’s powers to refuse to release first-time offenders if the state opposes their applications. The first two provisos to Section 479 of the BNSS read as follows:

“Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the court, if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law:

Provided further that the court may, after hearing the public prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail bond instead of his bond.”

(emphasis supplied)

While the first proviso to Section 479 of the BNSS states the right of the undertrial belonging to the one-third period category to be released on bond, there is no mention in it of the state’s ability to oppose his/her application through the public prosecutor (PP).

The second proviso clearly applies to the half-period category of undertrials only wherein the PP may oppose their applications for release. Neither the first version of the BNSS Bill tabled in parliament nor the second version tabled after it was revised based on the recommendations of the department-related Parliamentary Committee on Home Affairs talk about the possibility of the PP opposing the release of the one-third category of undertrials.

Does the absence of such a provision imply that the state cannot oppose the application of this category of undertrials? Or is this a case of shoddy drafting? This is the third grey area which the Supreme Court must urgently clarify.

Will Section 479 of the BNSS benefit more or fewer undertrials?

Before answering this question, let us look at the efficacy of the erstwhile Section 436A of the CrPC. Was it helpful in getting more undertrials out of prison or not?

Every year, the NCRB publishes its Prison Statistics in India report, which contains a wealth of data with regard to prisons, prison inmates, prison staff, budgets and expenditure patterns among other things. The NCRB began releasing data about the implementation of Section 436A of the CrPC only 2016 onwards i.e., more than a decade after it came into force.

Please see Table 1 below.

In 2016, as many as 13.08 lakh undertrials were released from prison. Only 0.07% of them got the benefit of Section 436A of the CrPC. The remaining 99.93% undertrials were released under other bail provisions contained in the CrPC, including by way of appeal to higher courts or because they were acquitted by the trial courts.

In 2022, 15.43 lakh undertrials were released from prisons across the countries – an increase of almost 18% over the 2016 figure. However, the proportion of undertrials released under Section 436A of the CrPC fell to 0.03%.

Further, as far as the eligibility criteria are concerned, in 2016, only 0.119% of undertrials were qualified for release under Section 436A. This proportion was the lowest in 2022 at 0.096%.

That is not all. The success rate of bail applications under Section 436A of the CrPC was almost 60% in 2016. In other words, almost six of every ten eligible undertrials were released under this provision. In 2022, the success rate had fallen to 36% – i.e., only about three of every ten applications under Section 436A were successful.

The NCRB also publishes the gender breakup of undertrials eligible for release under Section 436A and those who were successful. See Table 2 below. The success rate for male undertrials was at its highest in 2016 at 60.35%. In 2022 it had plummeted to 36.87%.

The figures show a declining trend in all years except 2021. Even as the number of eligible male undertrials fell by almost 20% in 2022 as compared with the 2016 figure, the success rate had not improved.

As for female undertrials, a see-saw trend is noticeable. The proportion of successful women applicants was 60% in 2016 and reached 100% in 2018, but it had dropped to 17.31% in 2022 – the lowest since 2016. After the year 2020, when no woman undertrial applicant was successful, the success rate has declined every year even though the number of women undertrials eligible for consideration under Section 436A has increased from four to 52.

The NCRB began publishing data about transgender undertrials 2020 onwards. In 2022, none of the three eligible applicants could avail the benefit of Section 436A of the CrPC. The data shows that it had become difficult for women undertrials to avail the benefit of that provision.

Conclusion

Section 436A of the CrPC was a salutary provision introduced in 2005 to end the prolonged incarceration of undertrials. However, the data analysed above shows that its effectiveness, in terms of the number of persons who were successful in getting bail, has steadily declined since 2016.

There is an urgent need for making an assessment of the efficacy of this provision by reviewing the case records to find the reasons behind the declining rate of success, with particular focus on women and transgender undertrials.

As for its successor provision, Section 479 of the BNSS, it is likely to be even less effective because of the multiple obstacles placed in the path of release for undertrials. The ineligibility criteria – being charged with offences inviting life imprisonment and being alleged to have committed multiple offences or being an accused in multiple criminal cases – will reduce the number of undertrials who can be considered for release.

What is worse is the strong likelihood of the imposition of these ineligibility criteria on undertrials who were incarcerated under the erstwhile CrPC. In other words, there is a real danger of the diluted portions of Section 479 of the BNSS being applied with retrospective effect by jail superintendents. In what manner the Undertrial Review Committees will facilitate the implementation process remains to be seen.

In my view, the bail provisions in the criminal procedure laws directly emanate from the rights to life and liberty protected under Article 21 of the constitution. Article 21 protects the life and liberty of every person including undertrials, subject to the procedures established by law.

The arbitrariness or fairness of Section 479 vis-a-vis its predecessor, Section 436A of the CrPC, must be tested on the anvil of Article 21 before the Supreme Court without further delay. It is also important that the problems like the lack of procedural clarity with regard to the one-third period category of undertrials is sorted out at the earliest.

No person must be deprived of his/her liberty unless it is absolutely necessary and can be justified by sound reasoning.

Venkatesh Nayak is Director Commonwealth Human Rights Initiative, New Delhi. Views are personal.

The Burgeoning Share of Undertrial Prisoners in India’s Jails

For every ten prisoners in India, only two have been convicted of a crime. Among those awaiting trial, a disproportionate share come from marginalised communities.

India’s overcrowded prisons confined more than half a million inmates at the end of 2021, with a majority of them being those under trial for crimes they had allegedly committed. Among the 5,54,034 inmates across India’s prisons, 77.1% were under-trials and 22.2% were those who had been convicted by a court of law, data from the National Crime Records Bureau (NCRB) shows.

India currently has the sixth highest share of pre-trial detainees in the world, according to data collated by the World Prison Brief. The five countries that fare worse than India are Liechtenstein, San Marino, Haiti, Gabon and Bangladesh.

The slow turn of the wheels of justice

This large share of the under-trial prison population is not a recent phenomenon, but has persisted for decades now. A Law Commission report from 1979 noted that the share of those in pre-trial detention was 57.6% as of January 01, 1975, and the Commission lamented that “jails should primarily be meant for lodging convicts and not for houSing persons under trial.”

The share of under-trials has been consistently expanding, and saw a sharp jump in 2020 during the pandemic. Credit: Centre for Economic Data and Analysis

While India’s justice processes have been infamous for the slow dispensation of cases for a long time now, the COVID-19 pandemic further decelerated judicial processes.

The lockdowns imposed to check the spread of the disease and social distancing requirements severely restricted the functioning of Indian courts. After the nationwide lockdown was imposed on March 25, 2020, Indian courts worked on reduced capacity for months, bridling the trial and justice processes for thousands of Indians. Even as the number of prisoners grew, 2020 saw a fall in the number and share of convicts. The number of those under-trials continued to grow. This was despite efforts of the Supreme Court right from the early stages of the pandemic to decongest prisons to avoid the spread of the disease among inmates.

Those awaiting trial are spending longer time in prison over the years. Credit: Centre for Economic Data and Analysis

With the wheels of India’s trial courts turning slowly, those awaiting trial are spending longer time in prison over the years. In 2011, 40.1% of those under-trial had been in prison for less than three months, while almost 22% had been imprisoned for a year or more. By 2021, 29.1% of under-trials had been in prison for more than a year.

Prolonged undertrial detention leads to several concerns

Such lengthy detention of unsentenced prisoners has its origins in two common phenomena, notes Human Rights Watch: “the denial of pretrial release to criminal defendants, and the excessive duration of criminal proceedings.” And both of these violate international human rights norms, and “combined together they constitute a grievous affront to justice”, the international organisation observes. Additionally, the inability of several inmates to pay for their bail bonds means they end up languishing in prisons even when they could be out.

Prolonged undertrial detention leads to several concerns, according to a report by Amnesty International (2017). Such detention can violate the rights to liberty and fair trial, and also adversely impact the lives and livelihood of those incarcerated. Prolonged undertrial detention also increased the risk of torture or other ill-treatment.

These cautious observations need to be read against the context that undertrials in India tend to overwhelmingly come from marginalised backgrounds, with Dalits, Adivasis and religious minorities – especially Muslims and Sikhs – overrepresented among prison inmates.

Religious minorities are overrepresented among prison inmates, but there have been some shifts

A dominant share of those in prisons at the end of 2021 were men (95.8%) and those with little or no education. A quarter of all those in prison (25.2%) at the end of 2021 were illiterate, and another 40.2% had not studied beyond class tenth.

And those who come from minority religious and caste communities are overrepresented among prison populations.

The share of Hindus is lower among prisoners than their share in the population while Sikhs and Muslims are overrepresented among inmates. Credit: Centre for Economic Data and Analysis

While the share of Hindus is lower among convicts and under-trials than their share in the population, Sikhs and Muslims are overrepresented among both kinds of prisoners.

And there is a gap in the religious composition of those under-trial vis-a-vis those who have been convicted. Muslims are the only religious group whose share is larger among the under-trials than among the convicts, whereas for other groups, the trend is the opposite.

Around the world, those from marginalised communities are often more likely to be suspected of criminal behaviour, more likely to be detained in prison while awaiting a trial, and if convicted, likely to be punished more severely, says Fair Trials, a global criminal watchdog.

In India too, studies have pointed out a bias within the criminal justice system. A study from Maharashtra found that Muslims were overrepresented in jails in the state, and that there was a link between how the criminal justice system operated with the discrimination faced by those from the community (Raghavan and Nair, 2013).

The police is more likely to be suspicious of Muslims being prone to crime than other communities. Credit: Centre for Economic Data and Analysis

In their study of the status of policing in India (2019), Common Cause and the Centre for the Study of Developing Societies found an anti-Muslim bias among the police personnel surveyed. Respondents were asked about the extent to which people belonging to different communities were “prone towards committing crime”. Over half of those surveyed felt Muslims were somewhat or very likely to be so, a higher share than those who thought so for other communities. This bias was stronger in some states, such as Karnataka, Jharkhand and Uttar Pradesh, as compared to others. The survey, however, did not include Sikhs or Christians within the community categories.

There has, however, been a small but notable shift in the religious composition of prisoners in the last ten years. The share of all minority groups combined has seen a small fall, and that of Hindus has seen a small expansion since 2011, both among under-trials and convicts, though the shift has been slightly greater among convicts. In 2011, Hindus formed 70.5% of all under-trials and 71.7% of convicts, while Muslims 21.2% of under-trials and 17.8% of convicts.

Also Read | Book Review: Life in Indian Jails as an Undertrial Prisoner

Marginalised caste and tribal communities overrepresented

Along with religious minorities, those from marginalised caste and tribal communities are strikingly overrepresented among India’s prison population.

At the end of 2021, those from communities considered ‘Scheduled Castes’ formed 22.8% of under-trials and 21.7% of convicts, respectively, as compared to their share of 16.6% in the population as per the 2011 Census. And in contrast to their share of 8.6% in India’s population, those from Adivasi communities belonging to ‘Scheduled Tribe’ groups, comprised 10.7% of all under-trials and 14.1% of all convicts.

Adivasis in India often end up in prison while defending their collective rights on “jal, jameen and jungle” (water, land and forests), notes the Indigenous Peoples Rights International (IPRI) in its 2022 report ‘Criminalization of, Violence, and Impunity against Indigenous Peoples’.

This is not a recent phenomenon, but can be traced back to the British colonial rule which had declared over 150 Adivasi communities as criminals under the Criminal Tribes Act, 1871. The perception of the Adivasi communities has not changed significantly, notes IPRI, and continues to be seen as dangerous, and consequently more likely to be suspected of crime.

Credit: Centre for Economic Data and Analysis

But beyond their representation among the prison population at the end of 2021, a noteworthy trend emerges in the past ten years. Prison data since 2011 shows that while the share of SCs and STs has remained largely constant among India’s prison population, the share of those from ‘Other Backward Class’ communities (OBCs) has seen a notable rise. From comprising 29.5% of under-trials and 28.7% of convicts in 2011, the community’s share grew to 38.3% and 37.3% of under-trials and convicts, respectively, at the end of 2021.

In the same period, the share of those from “other” groups reduced.

Several states saw a rise in the share of inmates from the OBC communities among prisoners in the past decade. In Karnataka, for example, their share among under-trials jumped from under 5% between 2011 and 2017 to 51.3% in 2018, and from less than 10% before 2017 to 43.5% among convicts. Tamil Nadu too saw a spike in the period between 2011 and 2021.

However, the national trends seem to be driven by Uttar Pradesh which houses the largest share of prisoners from OBC communities in the country (at the end of 2021, 27.5% of OBC convicts and under-trials across India). In 2011, 36.2% of all under-trials in the state, and 36.1% of all convicts were from OBC communities. At the end of 2021, their share had risen to 46% and 46.7% respectively.

This shift – whether driven by changes in the classification of caste categories in these states, or by changes in the documentation methodology, or something entirely different – merits attention.

What are the ways out?

Currently, there are over 41 million cases in India’s lower courts and a little under six million cases in the country’s high courts, the National Judicial Data Grid shows. Over 63% of the cases in the lower courts and 77% in the high courts have been going on for over a year. Almost a quarter (23.6%) cases in the lower courts have been ongoing for more than five years, thousands of which have been ongoing for decades.

Navigating the legal system can be specifically challenging for those from marginalised communities. Lack of awareness, legal ignorance and lack of access to the right legal support and resources can mean that once imprisoned, they can end up being in jail for longer periods of time, often beyond the prescribed punishments for the crimes they have allegedly committed.

With that kind of backlog and burden facing our courts, the burgeoning shares of under-trial prisoners may remain a colossal challenge for our justice system to address for some time to come. In addition to fast-tracking the trial process, streamlined bail processes may help, a call made by none other than India’s Supreme Court recently.

This article was originally published by CEDA.

The Violent Misuse of a Sacred Symbol

The act of marking a Muslim prisoner’s back with a Hindu symbol is not a sacred but a territorial act, where the mis/use of power involves marking someone with sacred symbols as proof of dominance.

A friend had pointed it out to me, in an Arya Samaj Mandir. It was more than a decade ago, when a roommate in JNU, who hailed from Haryana, was entering into an inter-caste marriage with his long-time, Bengali girlfriend. The wedding was taking place against the wishes of their respective parents. There were only friends from the university, who were present to take part in the couple’s happiness. Such is the price of love, in a society where the celebration of “family values” and “religious values” have for generations, meant the celebration of patriarchy, caste interest, and economic interests. It inevitably meant the refusal to accept, the free laws of love. We were in the middle of the short ceremony when my friend drew my attention to a poetic line written on the wall: “Om means a thousand things. One of them is, welcome to the abode of the gods.”

Growing up in a Hindu household, I was of course aware of the symbol. It used to be drawn in red, on small urns made of copper, and placed before a deity. On the urn, Dūrvā (or Darbha, or Kusha) grass would be dipped in water. The Dūrvā grass comprises of three blades, which symbolises the sacred trinity for Hindus. Om, I slowly learnt, was considered the primordial sound, the sacred syllable, that would precede all chanting. The word has been associated with cosmic significance in the Aitareya Brahmana of the Rig Veda, as something that connects the liberated human spirit with the universe, as “essence of breath, life, everything that exists”.

It shook me from inside, to see the photograph of the Om symbol, being violently engraved on the back of a man I learnt is Nabbir, an undertrial Muslim prisoner in Tihar jail. Nabbir was forcibly marked and denied food for two days on April 12, allegedly by the jail superintendent. This is not just a terrible incident, but marks of a sickness that can quickly, if unchecked and not punished by law, spread into a fascist method of torture and humiliation. This is a bizarre act of classifying a non-Hindu victim.

It is necessary to pay attention to what is taking place in this incident. A language of horror is being established through this act of power. By engraving the symbol, the Muslim prisoner’s body was robbed of its sovereignty. Sovereignty here is political in the religious sense. The invisible presence of the sacred exists in the prisoner’s body. The marking of the Hindu symbol on his back, is a violation of the prisoner’s sacred world, where the meaning of sacred becomes territorial. The body is no longer the body of a man who can exist within his ‘human rights’, despite his lack of political rights as a prisoner.

Inmate Nabbir with the Om symbol branded on him. Credit: Twitter/Utkarsh Anand

What is ‘human’ within the man’s belief system is intrinsically his ability to exist as a man who belongs to a god. It is a spiritual relationship that belongs to the realm of another law, where governmental power is marked off, and ideally has no control over. What has occurred in this case is precisely this ‘human’ breach between governmental power and sacred power. The superintendent did not limit himself to the task of holding juridical authority over his prisoner. That limit was overcome by a violent superimposition of another authority (or power) that the superintendent had no right to use over the prisoner.

The act of marking a Muslim prisoner’s back with a Hindu symbol is not a sacred but a territorial act, where the mis/use of power involves marking someone with sacred symbols as proof of dominance. The act of marking the prisoner’s shoulder with the sacred symbol that does not belong to the world he inhabits within, is to humiliate his inner sense of sacredness by deliberating implanting an alien symbol on his body. That symbol is also torn from its own sacred universe, and made to symbolise something territorial.

In the Tihar jail incident, everything is reduced to the trembling of a body, where the sacred is turned into a mark of horror. It is a space where everything corresponds to nothing, where symbols are reduced to bones, where the holy is reduced to what in the Book of Revelation (13: 16-17) is called “the mark… of the beast”. The “essence of breath, life and everything that exists”, what is symbolic of Om, is violently taken away from the prisoner. He is left to breathe, and live, only his humiliation.

Whether you believe or not in the human soul, we can name the soul as an invisible entity that remains in correspondence with something unnamable. It is this soul that all forms of barbaric power want to control and humiliate, in order to reduce the human to a nonhuman status. Even in the Germany of 1938, Jewish prisoners were marked by a yellow star, which was a perverted form of the Jewish Star of David. When history repeats itself, it is not just as tragic or farce, but sometimes pure horror.

Manash Firaq Bhattacharjee is the author of Looking for the Nation: Towards Another Idea of India, published by Speaking Tiger Books (August 2018).

Delhi Court Orders Enquiry After Muslim Inmate in Tihar Branded With Om Symbol

Nabbir, an undertrial prisoner, alleged he was tortured and denied food for two days by a jail superintendent.

New Delhi: A Delhi court has called for an enquiry after a Muslim undertrial person was branded with an Om symbol, allegedly by a Tihar jail superintendent.

Nabbir, an undertrial prisoner at the Tihar jail, told his family that he was branded with an Om symbol and was not fed for two days on April 12. He said that he was subjected to cruel and inhuman treatment by jail superintendent Rajesh Chauhan. After his family informed his counsel, the counsel moved an application in the court.

The court inspected Nabbir’s burn marks and is also in possession of photographs showing the mark.

In an order calling for an enquiry, the court said, “The allegations raised by the accused are of serious nature and required immediate intervention… a notice is being issued to DGP, Prisoner, Head Quarter, Jail No. 4, New Delhi to get the medical examination of accused Nabbir conducted with immediate effect and also to make enquiry report regarding the burn imprinted ‘Om’ mark on the person of the accused.”

It said necessary CCTV footage should be collected, in addition to statements of other inmates. “It is further directed that necessary arrangements be made to ensure the safety of accused in jail and he be immediately removed from the direct or indirect supervision of jail superintendent Rajesh Chauhan,” the order read.

Also Read: Why We Need to Talk About the Condition of India’s Prisons

The order was issued on Wednesday and asked for the report to be filed by Thursday. It is unclear if the report has been filed or not.

There have been several reports of undertrial prisoners being tortured or persecuted in jails. Alarmingly, the National Human Rights Commission said in April last year that 21 undertrial prisoners affiliated with the Students Islamic Movement of India were tortured, assaulted, persecuted based on their religion and were denied medical treatment.

In the 273rd Law Commission report, a recommendation was made that state agents – policemen, military and paramilitary personnel – accused of committing custodial torture should be criminally prosecuted instead of just facing administrative action.

There have also been a distressing number of custodial deaths reported in India. Based on a statistics filed in the Rajya Sabha, a report estimated that between April 2017 and February 2018, 1,674 cases of custodial deaths were recorded.

One in Every Three Under-Trial Prisoners in India Is Either SC or ST: Study

“These facts together point to a pattern of targeting Dalit and Adivasis,” the report says.

New Delhi: Members of the Scheduled Castes (SC) and Scheduled Tribes (ST) are over-represented, in relation to their population, in India’s prisons, a new study has found. While the groups account for 24% of India’s population, their representation in prisons is significantly higher, at 34%.

The report titled ‘Criminal Justice in the Shadow of Caste’ has been prepared jointly by the National Dalit Movement for Justice and the National Centre for Dalit Human Rights. It draws heavily from National Crime Records Bureau (NCRB) data.

The report also finds that certain states have strikingly higher levels of disparity between the percentage of SC/STs in their total population and in their prisons. It says that Assam, Tamil Nadu, Maharashtra and Rajasthan as the worst performers. In Tamil Nadu, for instance, the difference is as high as 17%. As many as 38% of under-trials in Tamil Nadu are either SC or ST, while their share in the total population is 21%.

“These facts together point to a pattern of targeting Dalit and Adivasis and call for investigation of factors leading to the continued victimization of the community by the Police and further victimization as under trials,” the report said.

Also read: Three-Quarters of Death Row Prisoners are from Lower Castes or Religious Minorities

It also notes that when members of the Dalit or Adivasi communities register atrocity complaints, the accused often register counter FIRs against the victims. “This is done with the sole intention of counter blasting the complaint filed by the SC victims. As a result of the counter cases, SC victims of atrocities are being arrested and subjected to criminal litigation as accused in the counter cases,” the report said.

This is the kind of misuse that the Supreme Court said the SC/ST (Prevention of Atrocities) Act was subject to, and based on which it decided to dilute the Act in March last year.

The 2015 NCRB report noted that Dalits, Adivasis and Muslims constitute 55% of the undertrial prisoners in India. This figure is considerably disproportionate to their total share of the population. According to the 2011 Census, the three communities constitute 39% of the total population in India.

The report on criminal justice also pointed out that a disproportionately high percentage of those sentenced to death are from the backward classes. The analysis, based on the Death Penalty India Report by the National Law University launched in 2016, found that of the 279 prisoners on death row, 127 or 34% are from the backward classes. Those from the general category constitute 24%.

Another 20% of those sentenced to death belonged to religious minorities. That figure climbed to 79% in Gujarat, where 15 of the 19 prisoners sentenced to death were Muslims.

According to the report, ‘deeply entrenched prejudices’ play a crucial role in the harassment and incarceration of underprivileged communities. “Usually the victims of police torture are mainly Dalit’s and Adivasis. They are often picked up and jailed on concocted charges,” it said.

The report also highlighted that delayed police investigations result in large number of Dalits and Adivasis in jail. “Many prisoners languish in prisons because the police do not complete investigation and file the chargesheet on time. This is a very serious matter because such people remain in prisons without any clue of a police case against them.”

Plans of a Swanky Prison Cell for Vijay Mallya Violate Equality Before Law

Inhuman conditions in Indian prisons is a real problem, but creating small islands of human rights for affluent individuals while other prisoners languish is anomalous in nature and against the principle of justice.

Mumbai’s Arthur Road jail plans to build new cells in a bid to facilitate millionaire expat Vijay Mallya’s stay in prison under ‘humane conditions’. The liquor tycoon is wanted in India for alleged money laundering charges. Mallya had complained to a London court about ‘inhuman conditions’ of Indian prisons. The court asked Indian authorities to submit video footage of the Arthur Road jail cell in which Mallya would be kept post-extradition. According to media reports, the prison officials have claimed that they will make few cells which will meet international standards of human rights. The new cells will be constructed within six months. Other wanted expats who have sited similar grounds for not returning to India might also be kept in these newly constructed cells.

Inhuman conditions in 1382 prisons

Inhuman conditions in prison is a very serious problem in India, something even former chief justice of India R.C. Lahoti wrote about. The Supreme Court, in a suo motu petition (Re-inhuman Conditions In 1382 Prisons), decided to address the problem. Presently a bench comprising justice Madan Lokur and justice Deepak Gupta, is hearing the matter and passing inter-alia orders. The case is being heard since 2014. The apex court had long ordered the states to come up with a plan of action to decrease prison overcrowding. But hardly any state came up with a plan. Finally, suo motu writs started under the chief justice bench in all the high courts of the country to tackle endemic problems such as prison overcrowding and custodial deaths. The Bombay high court too passed orders regarding improvement of prison conditions.

The Maharashtra prison department, instead of complying with the existing court orders and implementing them across the state, suddenly chooses to make an exception. By creating a handful of cells in Arthur Road jail which will have ‘humane conditions’ for a certain individual of privilege, the Maharashtra prison is breaching the constitutional provision of equality before law. Arthur Road jail is an overcrowded prison, housing more than 2000 prisoners who suffer in inhumane living conditions. To create a small bubble of human rights for an affluent individual, that too under the pressure of a foreign court is nothing but a watershed moment in the history of Indian prisons.

Arthur Road jail in Mumbai. Credit: PTI/ Mitesh Bhuvad

Privileges enjoyed by the imprisoned Bahubalis in Bihar

It may be argued here that there is nothing new in creating special prison structures for the rich and influential. The stories of imprisoned “bahubalis”, or king makers of Bihar are not unknown. Bahubalis are men who essentially have serious criminal antecedent before joining politics. They exert immense political clout in the state. Even while imprisoned, they are alleged to enjoy political patronage.

While inspecting Bihar prisons, I have personally met and spoken to some imprisoned bahubalis such as Sahabuddin, Anand Mohan Singh, Anath Singh. They were all given special accommodation inside the prison. While the Bihar prison manual provides for some special treatment for imprisoned MPs and MLAs, the department definitely went overboard.

Anand Mohan Singh was serving a life sentence with rigorous imprisonment inside Saharsa District Jail in 2015. He was kept in the Naxal ward, which was built in the early 1980s to house surrendered Naxalites. As surrendered Naxalites were considered political prisoners, the ward had a separate library. But Singh had turned the entire ward into a solo accommodation, with a private library, kitchen and a sitting room where he met visitors. He had a gazebo and a fountain set up by the lawn. The Naxal ward had turned into a swanky private bungalow facing a sprawling manicured garden. While other prisoners remained huddled inside filthy overcrowded wards, the man flaunted his kitchen and library to me. He offered me snacks made by his personal cook, who was also a prisoner. There were also rumours that his wife Lovely Anand (another well-known politician) would also visit him frequently.

In 2015, Sahabuddin was lodged in Siwan district jail. It was a small, dilapidated and overcrowded district prison, but Sahabuddin had an entire three-storey ward to himself. He had a kitchen and gym for himself. He had a store room where he would keep fancy running shoes and gym gear. He had regular visitors and was allowed food from outside. He had made imprisonment look like a symbolic affair. Prison was just another address, where he was available at all times for his followers. I was told that there was political tension due to the upcoming state elections, so he was practicing self-restraint as his wife was contesting elections, but otherwise enjoyed a free run. A special court was set up inside the jail because taking him to court proved a headache for the administration. Thousands of followers marched to the district court during every hearing.

Anant Singh was arrested only a month before I met him in Beur Central Jail. His arrest had come as a shock to him, as his political patron had suddenly abandoned him. This fall out was the result of a freshly formed election alliance between the RJD and JDU. Ananth Singh, who was famed for travelling across Patna in a horse driven chariot, was lodged in a huge room (cell) inside the prison. He didn’t have a ward to himself yet. When I met him, he spoke elaborately about being allowed to fight elections as an independent candidate and asked for permission to get milk and food from his home regularly. Other than a gas oven and a wooden bed, he had no TV or AC in his room. He had only those facilities which were permissible under the strict prison rules.

Anand Mohan Singh, Shahabuddin, Anant Singh. Credit: PTI Illustration: The Wire

Turning a blind and active participation

Even if the imprisoned bahubalis in Bihar were given fancy accommodation, it was not at the expense of public exchequer. The Bihar prison department definitely broke the rule by making an exception. But the administration was still playing a passive role in these aberrations. An element of secrecy and shame is involved in discriminating against other prisoners by turning a blind eye to the special facilities that high profile inmates were enjoying. The Maharashtra prison administration is actively participating in perpetration of discrimination against ordinary prisoners by constructing special cells only for ‘high profile’ prisoners.

The Maharashtra prison department is setting an aberrant precedent by normalising discrimination. The prisoner is not a non-citizen and rights of a citizen do not stand eclipsed while in prison. Every citizen has the right to equality before law. Prison is a state subject, a public institution at large and therefore cannot practice discrimination. This decision of creating small islands of human rights for affluent individuals while other prisoners languish in the same prison, is anomalous in nature and against the principle of justice.

Inhuman prison conditions is a compelling reality. There is a long standing movement demanding humane living conditions for prisoners. A prison structure which will comply with international standards of prisoner rights should be a welcome effort. But to build it specifically to house an affluent expat is deeply problematic. If Mallya is extradited, it might help the government score some political points during an election year, but this extravaganza is unnecessary. There could be several alternatives to gain his custody, rather than creating a handful of special cells. The prison department should instead utilise this budget to improve overall conditions inside Arthur Road.

The problem can only be addressed through systemic reforms and policy changes regarding matters of bail, speedy trial and remission, not through cosmetic changes by building a dozen swanky cells. It is important to look into alternative and progressive prison systems such as an open prisons system.

Smita Chakraburtty is an independent researcher of prison related issues.