Investigation: Undertrails; Hell's Prisoners

India has 1.63 lakh undertrial prisoners -- inmates of a legal labyrinth which takes a lifetime to dispense justice, often literacy .

Three wars, six nuclear tests, 12 prime ministers, countless cricket matches. That's just a sample of the India Ajoy Ghosh has missed since January 1962. What's he been doing in this period? Watching the iron bars of his cage, the peeling plaster on the walls of his cell in Calcutta's Presidency Jail, waiting out 36 years in which nothing ever happened.

Ghosh is the longest serving member of that peculiar Indian species called the undertrial. He was arrested for murdering his brother. Subsequently, he was certified insane and, therefore, unfit for trial. So he was never brought to court. After his mother died in 1968, no visitors were brought to him either. Ever since, he has remained tucked away in an obscure corner of the prison.

Periodically, social activists petition the Calcutta High Court for Ghosh's release. In 1995, the court asked the West Bengal Government to transfer him to a lunatic asylum. The order was ignored. Ghosh is now partially blind, has practically forgotten human speech. His life is the ultimate vicious circle. Ghosh cannot be released unless acquitted. He cannot be acquitted unless tried. Since he is legally a lunatic, he cannot be tried.

Linguistically and legally, the undertrial is singularly Indian. The noun exists only in Indian English, kosher vocabularies preferring to use "remand prisoner". That apart, no other crime-fighting system so gladly plays host to unconvicted prisoners. In 1996, it was estimated that there were 1.63 lakh undertrials in the country, 72.32 per cent of all prisoners. Many have spent more years in jail than their crimes -- should they be convicted -- would necessitate.

KRISHNA PRASAD, 50, Beur Jail
Charge: Forging bail applications
Maximum punishment: Seven years
Time spent as undertrail prisoner: Eight year

It is a routine he has grown inured to. Every working day, Krishna Murari Prasad is taken to the Patna District and Sessions Court. He travels in a police van, chained to other prisoners. There are normally about 40 of them. Since the lock-up room is usually packed, they stay all day in the stuffy, smelly van, waiting to be summoned by the judge. The summons rarely come. Evening comes earlier -- and Prasad returns to his cell.

Ironically, the very court was once Prasad's workplace. In 1986, he was a clerk there when he was arrested for forging court orders to facilitate bail. In 1989, Prasad was released on bail, in the teeth of opposition from the CBI. In 1993, the CBI had its way, permission for bail was revoked and he returned to the prison which is now his home. Prasad faces 12 cases. Not one has been decided upon; in four of them, even the charge-sheet hasn't been filed. Nevertheless, he has gone to the court "some 800 times".

A wasted life has made Prasad a sad man. Three of his children, two girls and a boy, have died during his years in prison. The despair is perceptible when he says, "My wife isn't able to cope without me. Somebody help." Fate has taught Prasad a wicked lesson. "While I was a court clerk," he says, "I didn't realise how slow the legal system was." Now, he is its victim, crushed under the same wheel of which he was once a cog.

Consider Venkatappa Kuppudu, alleged dacoit and resident of Bangalore Central Jail. Since he is too poor to afford a lawyer, he is dependent on a state-appointed one "who always seeks adjournments". Apparently, the lawyer has made minimal effort to get his client bailed out. In the time he has been away from home, Kuppudu has lost a heart-broken father. He has also become a father -- his son was born shortly after the arrest.

Justified comeuppance for a criminal? Face this. Kuppudu is charged under section 395 of the Indian Penal Code (IPC), which prescribes a maximum imprisonment of four years. He has already been in prison for nine.

Kuppudu is not alone. Courtesy overcrowded prisons, no undertrial is. Take Delhi's Tihar Jail. Built for 2,500 internees, it now holds four times its capacity -- 8,000 being undertrials. Alternatively, consider Uttar Pradesh. The state has facilities for 30,000 prisoners but holds captive over 40,000.

It's not just the jails which are teeming with undertrials. In the Patna District and Sessions Court, there is a lock-up meant for 15 inmates. When the court is in session, over 50 undertrials are packed into it. The room has no fan -- and no toilet. Expectedly, it emits an acrid stench and nobody even goes close to it. Life on a 19th century slave ship couldn't have been very different.

Overcrowding affects health and hygiene. According to the National Human Rights Commission (NHRC), 70 per cent of all custodial deaths (888 in 1996-97) are caused by tuberculosis. Perhaps more pernicious is what the NHRC terms the "contamination of petty offenders". The Prisons Act of 1894 -- still the effective law -- prescribes that "unconvicted prisoners are to be kept apart from criminal prisoners". Still, in practice the Indian prison system does not distinguish between convict and undertrial. The result? Even tyros in crime get vitiated, easy prey for gangsters looking for fresh recruits. The jail fails in its role as a correctional centre.

S.R. SHINDE, 29, Yeravada Jail
Charge: Petty theft
Maximum punishment: Six months
Time spent as undertrail prisoner: 20 months

S R Shinde To some, "travesty of justice" is an overused clich . To Sadashiv Ramchandra Shinde, it is life. He has already served his prison sentence three times over and more -- but the ordeal is far from over. Formerly an odd jobs man with the Pune Municipal Corporation (PMC), Shinde was arrested in 1996 for stealing a mercury lamp -- the street lamps which emit orange light -- from the PMC's store. Since then he has been an undertrial accused of petty theft. If convicted, Shinde could be sentenced to imprisonment for a minimum of three months and a maximum of six months.

Unable to afford bail, set at Rs 1,000, Shinde has more or less reconciled himself to a long spell in prison. His case comes up for hearing once every fortnight at the Pune Metropolitan Court. He hopes for freedom. All he receives are tareekhs (date extensions). The irony is the day Shinde's case is decided by the court -- be he deemed guilty or innocent -- he is a free man. "Every time I am taken to court," he says, "I am only given a new tareekh." Shinde is aware that he should have been out a long time ago: "But it is just my fate. God alone knows when I will be able to go home." Meanwhile, his family -- comprising his wife, two sons, aged five and seven, and parents -- wistfully await his return. After all, Shinde is the sole breadwinner and the home fires burn slowly while he's away.

That may be getting ahead of the story. The point is: who is responsible for the undertrial catastrophe?

Conventional wisdom has it that the tardy Indian legal system is to blame. Ask Vipin Tuddu, 21, a Santhal youth from Kokrajhar lodged in Bihar's Phulwari prison for 36 months now. The police say he was caught ferrying marijuana in a truck. Tuddu insists he was only hitching a ride. Whatever the truth, he has been produced in court at least 20 times -- but his trial has still not begun.

Most undertrials are small fry, propelled towards thievery by indigence. They can't afford lawyers and are treated as step-clients by the ones provided by the state. Tuddu, for instance, simply doesn't know who his lawyer is. Sometimes the mandatory state-provided lawyer doesn't turn up at all. In 1994, the Bombay High Court observed that "no effective steps are being taken to implement the rules" relating to making available legal help to unrepresented undertrials. In 1997, the Patna High Court set up a committee to study prison conditions in Bihar. Lawyer Anjana Prakash was part of it. It was an experience which still makes her recoil in horror: "We found cases of many undertrials had not commenced because they had not been provided lawyers."

So much for the legal profession. Policemen are not quite taint-free either. The case of Manik Seal of Calcutta's Alipore Central Jail is indicative. Accused of murder in 1987, he has been produced in court only three times in 11 years. Some see Seal as falling victim to an unwritten norm that prisoners have to bribe jail authorities to ensure regular appearances. Otherwise, the undertrials are apparently declared "sick" and "unable to attend court" by cooperative jail doctors.

SHIVKUMARI, 25, Yeravada Jail
Charge: Prostitution
Maximum punishment: Seven years
Time spent as undertrail prisoner: Four year

No Hindi film could have a better script. A 19-year-old with an infant son is abandoned by her husband and left to support herself and her child. Without family or financial resources to fall back on, she hands over her baby to the care of her sister while she travels hundreds of miles to Mumbai, the city of lucre, with dreams of a job and of money. So far so good. Then, somewhere along the line, the story went horribly wrong for Sivakumari.

From a village near Visakhapatnam in Andhra Pradesh to the heart of Kamathipura, Mumbai's red light district, Sivakumari's journey finally ended in a cell in the women's section of Pune's Yeravada Central Jail. Five years ago, the hapless woman -- along with three others -- had been lured to Mumbai by an agent with the promise of a well-paying job. It was a desperate decision. There was not enough income for even two meals a day.

The dream abruptly turned sour. In Mumbai, Sivakumari found herself in a prostitute's den, enmeshed in the racket even before she realised it. "I was taken to the brothels to be induced into the flesh trade," she says, "but I managed to run away from there." Her ordeal had just begun. Within a week, she was arrested on Grant Road near Mumbai's sleaze district and charged under the Immoral Traffic (Prevention) Act. Since then, Sivakumari has found a home in the female section of the Yeravada Jail. Justice has been unkind to her. She has technically been an undertrial for four years but her case hasn't come up for hearing even once.

Says an anguished Sivakumari, now 25: "Even if I am convicted for this crime, I could face a maximum sentence of seven years. But I have already done four years and not a single court date has been fixed. People who came to prison much after me have had their cases sorted out." Back home, her eight-year-old son continues to live with her sister -- or so she presumes -- and is unaware of her whereabouts. "My family must be thinking I am dead. I cannot write letters to anyone because of the prison address. No one has come to visit me in all these years and when others have visitors or letters, I feel like crying." Yet, Sivakumari lives in the fear that she may be recognised by somebody from the real world: "My life is already destroyed. But if my family comes to know I am in jail, my son's life will also be destroyed. He will be out in the streets. It will also reflect on my sister and her family."

Surviving in prison is another saga. Sivakumari possessed just one sari when she was arrested and undertrials are not provided prison attire. So she works for her co-inmates, washing utensils, clothes and performing sundry other chores for whatever little they may cast her way: a cake of soap, hair oil, old clothes. Deep inside, the flame of freedom flickers on: "As soon as I am released, I will go back home. I don't know when that day will come." It could take years; till then Sivakumari will just sit in her cell and stare at nothingness.

There's also the strange case of the Uttar Pradesh police. Insiders say it has hit upon an ingenious law-maintaining method: random arrests to "fill the quota of each police station" and maintain a pretence of "efficiency". Many of the arrests are made under the Narcotics Act. The modus operandi: plant five grams of narcotics on the local rickshawalla, then pounce on him. Sixty per cent of Uttar Pradesh's undertrials have been arrested under the Narcotics Act. The number may not decline in a hurry since, under this Act, the onus of proving innocence lies with the accused.

From the lurid to the light. H.T. Sangliana, ADG, prisons, Karnataka, points out that there aren't enough policemen to escort the undertrials to court. He suggests at least one escort per five undertrials. Everyday, 1,500 undertrials move between Karnataka's jails and courts. The state has to be able to spare 300 policemen, often more -- very often impossible.

Life as an undertrial coarsens the soul. It evokes fatalism, cynicism and a primordial desperation. On May 8, 170 internees at Karnataka's Chitradurga sub-jail began rioted over delays in taking them to court. Being tried for robbery, Venkatesh has spent four years in Secundarabad's Mushirabad jail. He talks of how a judge once admonished him for loud behaviour in court. A few days later, the judge was sacked for accepting a bribe of Rs 6 lakh. "We are being killed slowly," he says, convinced the world consists of the wrong and the more wrong.

Even a man who may be a killer can stir the most soporific conscience. In 1984, Mangal Singh was arrested for the murder of a university professor in Patna. Since then, he has been in Beur Jail, having served, in effect, a life term, without being convicted. When his wife and daughter died, Singh couldn't attend the funeral. He worries for his younger son who's fallen into bad company: "But what can I do?" Stare into blank space perhaps, like those 23 fisherman from Myanmar who have been in Chennai Central Jain since December 13, 1997.

Severe cyclonic storms drove them into Indian seas. Instantly, they were arrested for violating Section 14 of the Foreigners Act and Section 12 (1) of the Passport Act and entering India without proper travel documents. Despite their patent innocence and the intervention of the Myanmarese Embassy, the fishermen remain behind bars -- wondering what they did wrong.

Exasperating as it may be, the prison house drama is being played out on the taxpayers' money. To some, undertrialdom is the escape route from poverty. Tihar officials admit inmates' numbers swell during winter, as "the warmth inside is preferable to sleeping under the open skies". Adds a wry C. Ramakrishna, sp, Mushirabad Jail: "Whenever they have no money for food or healthcare, they arrive to be treated like sons-in-law of the state."

In Andhra Pradesh, Rs 27 is earmarked for each prisoner's food every day. In neighbouring Karnataka, the average expense per prisoner per day is Rs 95. As per the Karnataka Prison Manual, 1978, each undertrial is to be served 115 grams of boneless mutton once a week. At roughly 900 kg for 7,000 remand prisoners, this costs Rs 1.8 lakh a week. Give me liberty -- or give me meat?

In 1996, following a public interest petition, the Supreme Court sought to help undertrials whose cases had been pending for over a year. It ordered lower courts to release on bail all those who had spent over six months in prison and faced charges that could attract a maximum imprisonment of seven years. Cases for which the final punishment would in any case be less than a year's term were ordered closed forthwith. The prosecution mechanism should not resemble "engines of oppression", the apex court observed. Even so, the 1996 ruling -- the "Magna Carta of the undertrial", to quote one lawyer -- is freely violated. What next?

One solution suggested by Sangliana is to introduce an expedite rule to legal proceedings: judgement in three hearings flat. More practical would be an increase in the quantum of legal help to undertrials. The Tihar example is elucidative. Each of the six jails in the Tihar complex is visited by a lawyer from the Delhi Legal Aid Board five days a week, one hour everyday. Jayadev Sarangi, dig, prisons, Delhi, laments that a lawyer can draft barely a single bail petition a day: "We need more lawyers for those prisoners who can't afford to hire their own." This is the situation in Tihar -- which, by virtue of being in the capital, is seen as something of a "model jail" for the Indian prison system.

New laws too are in the offing. The Indian Prisons Bill, 1996 -- awaiting parliamentary approval and due to replace its predecessor of 1894 -- proposes that every "jail superintendent refer to the court concerned all the cases of undertrial prisoners ... in prison for more than one-half of the maximum sentence specified for the offence for which charged". The court is expected to consider the prisoner's release on a personal bond.

Will the Indian undertrial's nightmare soon send then? The jury is still out on that one -- and nobody's wondering more than the prisoner without a name, in that cell without a number.