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The delays in trials in courts has also taken menacing dimensions, leading to the overcrowding of prisons. By the early eighties, the situation had become alarming, the array of public interest litigations that have clogged the courts since then, is an indicator of the seriousness of the problem at hand. A system that was designed to handle a specific target group i.e. convicts had now been taken over by another, for which the system was poorly prepared i.e. under-trials.

The State of Under-trials in India

The system of prison welfare in the country was set in the context of reformation and rehabilitation of the convicted prisoner. Prisons were originally meant to house those who had been convicted by the law for the offences they were charged with.

A minor focus of prisons was the housing of the untried or the under-trial prisoners – those awaiting trial and kept in judicial custody, till the completion of their cases in courts. They were in prison either because they were unable to produce suitable sureties or because they had been denied bail due to the nature of the offence they were charged with. The basic duty of the prison and judicial authorities towards this population was to ensure their physical and mental health and safety and access to their legal rights.
However, one fact that the authorities and civil society did not take note of was the rising numbers of under-trials in prisons. The number of prisons has not increased post-independence, thus resulting in overcrowding and non-classification of prisoners according to correctional principles. As per Prison Statistics India 2002 report published by the National Crime Records Bureau, Ministry of Home Affairs, Government of India, 2004, New Delhi, there are a total of 1,135 prisons in the country, housing a total population of 3,22,357 prisoners as against a stipulated capacity of 2,29,874 prisoners. Out of this number, as of 2002, 25.5% were convicts, 69.2% were under-trials and the balance 5.3 percent being detainee and others. As far as the sex ratio is concerned, 96.3% were males and 3.7% were females.

The average occupancy of prisons in the country was 140.2%. This implies an overcrowding of 40.2% against the stipulated / authorised capacity. The worst scenario in terms of overcrowding was found in Delhi (331.1% i.e. overcrowding of 231%) and the most manageable was found to be in Daman and Diu (27.5% i.e. almost two-thirds empty). The Maharashtra figure on overcrowding was less than the national average, at 135.5% (i.e., overcrowding of 35.5%).

The delays in trials in courts has also taken menacing dimensions, leading to the overcrowding of prisons. By the early eighties, the situation had become alarming, the array of public interest litigations that have clogged the courts since then, is an indicator of the seriousness of the problem at hand. A system that was designed to handle a specific target group i.e. convicts had now been taken over by another, for which the system was poorly prepared i.e. under-trials.

The prison system has come to be crushed under the weight of petty offenders, ticketless travelers, those arrested for ‘loitering’ in suspicious circumstances, or drunken behaviour, hawkers, those arrested under the forest act, theft of railway property, petty theft, and a host of other property crimes which could be linked to the overall lack of employment options and social security benefits that any ‘caring’ State should have. These cases in turn clogged the courts of the country, crippling the criminal justice system in the process.

As per the Prison Statistics India 2002 report (India 2004), out of a total of 2,23038 under-trial prisoners in the country, the pendency of cases in the courts are as follows:
Pending for 6 months – 1,41,370 cases (63.38%)
Pending for 6 months to 1 year – 37, 645 cases (16.87%)
Pending for 1 to 2 years – 26,319 cases (11.8%)
Pending for 2 to 3 years – 11,898 cases (5.33%)
Pending for 3 to 5 years – 4780 cases (2.14)
Pending above 5 years – 1026 cases (0.46%)
As against these figures, the Maharashtra situation, out of total 14,527 under-trial prisoners, is as follows:
Pending for 6 months – 8964 cases (61.70%)
Pending for 6 months to 1 year – 2366 cases (16.28%)
Pending for 1 to 2 years – 2786 cases (19.17%)
Pending for 2 to 3 years – 235 cases (1.61%)
Pending for 3 to 5 years – 101 cases (0.69%)
Pending above 5 years – 65 cases (0.44%)

The above comparison, as far as under-trial prisoners languishing in prison (due to delays in trials in courts) is concerned, shows that the Maharashtra situation is marginally better than the national situation. The situation, however is far better than states like Bihar, Jharkhand and Uttar Pradesh, but does not compare well with the southern states like Tamil Nadu, A.P. and Karnataka.

The situation of interminable delays in the justice delivery system in turn, led to a very poor conviction rate. Collection of evidence, summoning of witnesses, ensuring they do not turn hostile at the trial stage and retaining the interest of the complainant in convicting the offender became a huge task for the prosecuting agencies. Most persons arrested (the average conviction rate in the country is less than ten percent!) finally get either acquitted or discharged in their cases.

The police machinery routinely arrests people rather than use their discretion of arrest (the power of arrest is a discretionary power given to the police by the law, to be selectively used by them only in cases where they apprehend the accused may abscond or tamper with evidence or commit another offence if allowed to roam free) and courts remand them to judicial custody after police investigation is over, thus increasing the load on the prisons, which has no choice but to keep them as under-trials till they go out on bail or their cases in court end up in a discharge, acquittal, release on probation or a sentence of imprisonment.

We are now faced with a situation whereby as far as the higher judiciary and enlightened forces within the system is concerned, the system should be accessible to the marginalised, whereas in practice, the rights and facilities offered by the system somehow eludes those who are most in need. The major reason why it functions thus is that the structures and investments required to implement the court judgements, and reform committee reports simply do not exist. In consonance with the changing realities there have been little or no investments made to increase trained manpower, ensure to legal rights, create rehabilitation structures and reduce overload on the system.

The Rationale for Introduction of the Video-Conferencing System

One of the long pending bottlenecks in the system with regard to delays in trials of under-trial prisoners and increasing pendency of cases has been the non-production of under-trial prisoners on their court dates due to non-availability of police escorts to take the under-trial prisoners (UTPs) from the prison to their court. As per the Criminal Penal Code  (Cr. P.C.), it is the duty of the police to perform this function. However, as the number of UTPs has assumed alarming proportions over the years, the police has been hard pressed to provide the requisite manpower to do this job. Escorting prisoners to court or to hospital is hardly a priority area as far as the police is concerned. They are overburdened with law and order, crime control, VIP security and bandobast (preparation) duties, and escorting prisoners to court/hospital always comes last on their list of duties.

Prison officers and judges have been grappling over this issue for many years. The system has tried to come out with a practical solution to deal with the issue, which is however totally in-consonant with the legal provisions. The UTP’s remand warrant is sent to the court and the magistrate/judge authorises his/her remand for the next 14 days by giving the next date and ordering that he/she be physically produced the next time! When this problem repeats itself, the presiding judge may ask the Superintendent of the prison to present him/herself before the court and give reason why the UTP has not been physically produced. The Superintendent’s explanation to this ‘show cause’ notice is usually to prove that he made all necessary efforts to ask for police escort but the police did not do so. Thus, depending on the amount of pressure the prison or the court authorities are able to put on the police, the escort may be provided at a subsequent date.

Various adhoc solutions have been suggested by the judiciary and criminal justice experts to overcome this problem. The idea of setting up of remand courts in prisons has been suggested. Based on a Supreme Court order, Jail Courts have been set up in prisons to ‘dispose off’ petty offences – this system, whereby the magistrate comes to prison once a week to hear petty matters, usually ends up in almost all such accused persons being ‘persuaded’ to plead guilty and get a set off sentence i.e the period already spent in prison by the UTP is considered as his sentence and he/she is set free. That such a practice leads to a systematic criminalisation of persons primarily coming from poverty and marginalised backgrounds does not seem to be a matter of concern for criminal justice administration.

In continuation of this adhocism that our criminal justice system has unfortunately come to be identified with, the Apex and High Courts as well as the State governments have been suggesting the setting up of Video-conferencing facility to deal with the problem of production of UTPs in courts on their dates (during their remand periods). Some arguments in favour of introducing this practice are:

• It will save human power, time and financial resources.
• During the remand period, UTPs are anyway produced only to extend their remand by a further period.
• The UTP can freely communicate with the presiding judge.
• Existing human power can be used to produce those UTPs whose trials have commenced leading to expedition of cases and reduction of overcrowding of prisons.
• Technology should be used to ‘modernise’ our archaic criminal justice system.

Such systems have consequently been introduced in prisons in many states such as Andhra Pradesh, Tamil Nadu, Karnataka, Maharashtra, West Bengal, Bihar, Gujarat, etc.

Efficiency at the Cost of Justice?

However, ground realities as always, are never in tune with arguments propounded by ‘experts’. UTPs being produced through the video-conferencing system are facing a range of problems, which could be summarised as follows:

• The video-conferencing system may be a good option for the criminal justice administration and judicial procedure, but the main problem is that presiding judge usually hears the remand application at great speed, since he/she has to to finish off the process within one or two hours, as opposed to the earlier system whereby UTP cases would be heard first before taking up cases of those out on bail. In such a situation, the under-trial prisoner is not able to properly communicate with the judge.
• The procedure is artificial not natural. There is no natural communication and proper time given to under-trial accused. This must be understood in the light of the fact that a large number of the UTPs come from marginalised and poverty backgrounds and do not have access to ‘modern’ technology.
• There is frustration among the under-trials who were produced through this system. Most of them felt that “nothing happens here; we are just given a next date – tarikh pe tarikh!”. Some were also upset because they wanted to communicate some of their problems to the magistrate/judge but could not do so (observation made by a student social worker from TISS placed in a prison in Mumbai)
• Legal aid is a Fundamental Right under the Constitution. This is especially true for accused persons, where the offence is punishable with imprisonment. Further, counsel for the accused must be given sufficient time and facility for preparing the defense. In prison, many of the prisoners are deprived of their legal rights due to illiteracy and ignorance about the law. Many prisoners could be released on surety bail, cash bail or P.R. bond, but they are not able to avail of such facilities due to lack of proper legal aid.
• In the earlier system, the accused were taken out, and were exposed to the outside world, and this provided them psychological relief from the stress of being an under-trial. They could also meet their family members and their relatives for a while in court. They could make a request before the magistrate with regard to problems being faced, plead guilty (in petty matters), etc. With the introduction of this new system, such possibilities have been greatly reduced.
• The chances of being able to get a lawyer of one’s choice when physically produced in court are higher as compared to being produced through video-conferencing, as the prisoner remains in prison and lawyers do not usually come to prison, unless it a ‘high profile’ prisoner.
• Chances of problems faced in prison being brought to the notice of the presiding judge are less as the UTP may feel ‘uncomfortable’ to bring them to the notice of the judge, while remaining inprison.

Conclusion

Use of technology should certainly be welcomed in increasing the efficiency of the criminal justice system. For example, digitisation of court documents, e-Linking of courts, computerization of records, communication within the system via e-Mail– these are all developments which should be introduced on a priority basis. However, when it comes to use of technology where people who are in custody, is concerned, one must caution against unbridled use of technology. The pros and cons of use of such technology should be weighed not in the context of whether is it ‘convenient’ or efficient’ alone, but rather on what are its implications on access to justice, especially for those sections of the population who are already marginalised within the system. It is in this context that the rising concerns of critics of the video-conferencing system, need to be heard, rather than dismissed.

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