Resource centre on India's rural distress
 
 

Access to Justice

KEY TRENDS 


• As of December 2015, 67 percent of prisoners in Indian prisons were ‘undertrials’ – people who were awaiting trial or whose trials were still ongoing, and who have not been convicted. In other words, there are twice as many undertrials in India’s prisons as there are convicts #

• India’s undertrial population has a disproportionate number of Muslims, Dalits and Adivasis. About 53% of undertrials are from these communities, which make up 39% share of the population of India. 29% of undertrials are not formally literate, while 42% had not completed secondary education. A quarter of all undertrials have been in prison for more than a year #

• There were 69446 pending matters as on 30/06/2013 before the Supreme Court of India &

• The National Mission for Justice Delivery and Legal Reforms has undertaken measures for addressing the backlog of cases and high pendency in the courts. As many as 73 Fast Track Courts (FTCs) have been established since January, 2013 for trial of offences against women in the country. Three new High Courts have been established in the North East in the states of Manipur, Meghalaya and Tripura. Nearly, 12234 subordinate courts have been computerised in the country against a target of 14249 to be achieved by March, 2014 $

• The Sexual Harassment of Women at Workplace (Preventation, Prohibition and Redressal) Bill, 2013 has been passed by both the Houses of Parliament and has received the assent of the President of India. It is a historic step towards gender equality. It mandates a safe environment for women $

• Based on the recommendations of the Government constituted Committee headed by late Justice JS Verma, the Criminal Law (Amendment) Act, 2013 was enacted, which provides for stringent punishment for heinous sexual offences against women $   

• To deal with cases of child sexual abuse in a more effective manner, a special law, the Protection of Children from Sexual Offences Act, 2012 has come into force with effect from 14th November, 2012. The Act is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harrassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts $

• Under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, more than 12.80 lakh titles covering forest area of 18.80 lakh hectare have been distributed as on 28th February, 2013. During 2012-13, Forest Rights Rules have been amended and revised guidelines have been issued to streamline and give further impetus to the implementation of the Act $

• The Lokpal and Lokayuktas Bill, 2011 as passed by the Lok Sabha on 27 December, 2011, was referred to the Rajya Sabha. Official amendments to 'The Lokpal and Lokayuktas Bill, 2011', after considering the recommendations of the Select Committee, have been approved $

• The Government has introduced a Bill during 2012-13 seeking amendments to the Prevention of Corruption Act with a view to punishing the guilty and protecting honest public servants more effectively $

• 1,486 Undertrials (0.6% of total undertrials) were detained in jails for more than 5 years at the end of the year 2011. Uttar Pradesh had the highest number of such undertrials (340) followed by Bihar (252) @

• In India women make up only 2.2% of one of the largest police forces in the world**

• India has a National Human Rights Commission as well as 206 separate state human rights commissions but does not have a single dedicated civilian oversight mechanism for its 35 police forces, many of which are frequently cited for excessive violence and abuse of power**

• The justice system is weakened by long delays; prohibitive costs of using the system; lack of available and affordable legal representation, that is reliable and has integrity; abuse of authority and powers, resulting in unlawful searches, seizures, detention and imprisonment; and weak enforcement of laws and implementation of orders and decrees***
 
# Justice Under Trial: A study of pre-trial detention in India (July 2017), please click here to access
 
& Supreme Court of India, http://supremecourtofindia.nic.in/pendingstat.htm

$ Report to the People 2012-13, Government of the United Progressive Alliance, http://pmindia.gov.in/report_to_people/2012-2013/report_PMO_English.pdf

@ Prison Statistics 2011, http://www.ncrb.gov.in/

** Commonwealth Human Rights Initiative (2005): Police Accountability: Too important to neglect, Too urgent to delay

*** Access to Justice, Practice Notes, United Nations Development Programme-UNDP (2004)

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Based on data and statistics from the NCRB and various other sources (including RTI applications), Amnesty International India has come out with a report. The key findings of the report entitled [inside]Justice Under Trial: A study of pre-trial detention in India (July 2017)[/inside], are as follows (please click here to access):

• The briefing, “Justice Under Trial: A study of pre-trial detention in India”, analyzes the responses to about 3000 Right to Information (RTI) applications filed by Amnesty International India to the nearly 500 district and central prisons in the country on the implementation of safeguards to protect the rights of pre-trial detainees, or ‘undertrials’.

• It has been found through RTI applications that two out of three people in India’s prisons are undertrials, and this proportion has not budged for several years despite various Supreme Court judgments.

• The briefing reveals a severe shortage across many states of police ‘escorts’ to take undertrials to court for their hearings. Between September 2014 and February 2015, in over 110,000 instances, undertrials were not produced for their hearings in court either in person or through video-conferencing facilities, in effect hampering their right to trial within a reasonable time.

• RTI data revealed glaring gaps in the legal aid system. In most states, legal aid lawyers visited prisons less than once a month. Many states have relatively few legal aid lawyers, compared to their undertrial populations. 5% of jails reported having no legal aid lawyers at all.

• Prison authorities in several states also appeared to have a poor understanding of section 436A of the Code of Criminal Procedure, which was introduced in 2005 to prevent undertrials from being held in pre-trial detention for more than half the sentence they would receive if convicted. Directives issued by the Ministry of Home Affairs in 2013 to reduce overcrowding of jails were also not properly followed. Only 38% of prisons which responded to RTI applications produced minutes of the meetings of Undertrial Review Committees.

• As of December 2015, 67% of prisoners in India’s prisons were ‘undertrials’ – people who were awaiting trial or whose trials were still ongoing, and who have not been convicted. In other words, there are twice as many undertrials in India’s prisons as there are convicts.

• India’s undertrial population has a disproportionate number of Muslims, Dalits and Adivasis. About 53% of undertrials are from these communities, which make up 39% share of the population of India. 29% of undertrials are not formally literate, while 42% had not completed secondary education. A quarter of all undertrials have been in prison for more than a year.

• Most prisons in India are overcrowded, partly as a result of excessive undertrial detention. The average occupancy rate in Indian prisons is 114%, and is as high as 233.9% in states such as Chhattisgarh.
 

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On December 23, 2012 a three member Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.  The other members on the Committee were Justice Leila Seth, former judge of the High Court and Gopal Subramanium, former Solicitor General of India. The Committee submitted its report on January 23, 2013.  It made recommendations on laws related to rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims, police, electoral and educational reforms.  The [inside]Justice Verma Committee report[/inside] can be accessed from here 

According to the [inside]Prison Statistics 2011[/inside], http://www.ncrb.gov.in/

•    383 Women Convicts with their 440 children and 1,177 Women undertrials with their 1,289 children were reported to be in prisons in the country at the end of 2011.

•     The number of undertrial prisoners has increased by 0.5% in 2011 (2,41,200) over 2010 (2,40,098).

•    1,486 Undertrials (0.6% of total undertrials) were detained in jails for more than 5 years at the end of the year 2011. Uttar Pradesh had the highest number of such undertrials (340) followed by Bihar (252).

•    117 prisoners were awarded death sentence during 2011 while 42 death sentence were commuted to Life Imprisonment. However, no execution took place during the year 2011.

•    Total of 1,332 deaths were reported (1,244 natural and 88 un-natural) during the year 2011.

•    43 deaths of female inmates were reported during 2011, out of which 8 deaths were suicidal in nature.

 

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According to the [inside]Supreme Court of India[/inside],

http://www.supremecourtofindia.nic.in/whatisnew.htm:

• The number of pending cases at the end of April, 2009 is 50,148. The huge rush of litigants, despite an increased disposal rate, has proved more than a match for the judges, who hear more than 80 cases a day.

• In January, 2007, the total number of pending cases had become 39,780. The apex court failed to arrest the pendency as it could not cope with the rising number of cases filed very year.

• The 21 high courts, working with a total strength of just 635 judges against a sanctioned strength of 886, reported a pendency of 38.7 lakh cases as of January 1, 2009 against 37.4 lakh cases on January 1, 2008.


According to the [inside]Commonwealth Human Rights Initiative (2005): Police Accountability[/inside]: Too important to neglect, Too urgent to delay,

http://www.humanrightsinitiative.org/publications/chogm/chogm_2005/
chogm_2005_full_report.pdf

• The higher judiciary in India almost invariably comes from the elite section of the society and has become a self-appointing and self-perpetuating oligarchy.  The Indian judges appoint themselves with the help of a remarkably self-serving judgment by which the power of appointment was appropriated from the government by the judiciary.  In the absence of any transparency or even any method or system in the manner of appointments, the process lends itself to large-scale arbitrariness and nepotism.  No criteria have been established for choosing and selecting judges.

• In India, for example, women make up only 2.2% of one of the largest police forces in the world.

• Crimes against women abound across India but are too often met with very poor response, with stereotypes and traditionalist attitudes prejudicing the way the predominantly male bastion handles cases. Rapes, domestic violence and trafficking are all under-policed not only because silence, suffering and shame prevent them being brought forward, but also because of the unsympathetic response they commonly receive.

• Victims of domestic violence are routinely belittled and even the presence of special legislation mandating police to protect its victims does not prevent women being turned away and refused relief. Women in custody are often vulnerable to sexual abuse - and increasing occurrences of such incidents prompted India to pass legislation that creates a presumption that where a woman is in custody, any sexual intercourse amounts to rape unless proven otherwise by the custodian.

• India is another country where nepotism is a deciding factor in the appointment of Director Generals of Police. The process has been reduced to state Chief Ministers handpicking their preferred candidates for the role rather than basing the selection on seniority and merit, which is what the actual policy prescribes.

• India has a National Human Rights Commission as well as 206 separate state human rights commissions but does not have a single dedicated civilian oversight mechanism for its 35 police forces, many of which are frequently cited for excessive violence and abuse of power.

 

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The [inside]Access to Justice, Practice Notes, UNDP (2004)[/inside] finds:

From the users perspective, the justice system is frequently weakened by:
 
1. Long delays; prohibitive costs of using the system; lack of available and affordable legal representation, that is reliable and has integrity; abuse of authority and powers, resulting in unlawful searches, seizures, detention and imprisonment; and weak enforcement of laws and implementation of orders and decrees. 

2. Severe limitations in existing remedies provided either by law or in practice. Most legal systems fail to provide remedies that are preventive, timely, non-discriminatory, adequate, just and deterrent. 

3. Gender bias and other barriers in the law and legal systems: inadequacies in existing laws effectively fail to protect women, children, poor and other disadvantaged people, including those with disabilities and low levels of literacy. 

4. Lack of de facto protection, especially for women, children, and men in prisons or centres of detention. 

5. Lack of adequate information about what is supposed to exist under the law, what prevails in practice, and limited popular knowledge of rights. 

6. Lack of adequate legal aid systems. 

7. Limited public participation in reform programmes. 

8. Excessive number of laws. 

9. Formalistic and expensive legal procedures (in criminal and civil litigation and in administrative board procedures). 

10. Avoidance of the legal system due to economic reasons, fear, or a sense of futility of purpose.

 

The case of Binayak Sen
(Sources: The Business Standard, The Lancet, The Hindu)

 

• Civil rights activist Binayak Sen completed two years in jail on May 14, 2009 as an undertrial on charges of assisting Naxals in Chhattisgarh, India.

• Sen and his wife, Ilina, have devoted their entire working lives to improve the health and welfare of the Adivasis, a marginalised and poverty-stricken tribal population. A troubling fallout of his incarceration is that much of his good work is slowly being eroded. His clinic, which provided essential health services, is on the verge of collapse.

• The Supreme Court on May 25, 2009 granted bail to Binayak Sen, vice-president of the People’s Union for Civil Liberties, who has been in detention since May 2007 under the Unlawful Activities (Prevention) Act for his alleged association with the naxalite movement in Chhattisgarh.

• Binayak Sen is the winner of the tenth annual Jonathan Mann Award for Global Health and Human Rights, and the first winner from India and South Asia. Sen is noted for extending health care to the poorest people, monitoring the health and nutrition status of the people of Chhattisgarh, and as an activist defending the human rights of tribal and other poor people. In May 2007, he was detained for allegedly violating the provisions of the Chattisgarh Special Public Security Act, 2005 (CSPSA) and the Unlawful Activities (Prevention) Act 1967.

• Binayak Sen-who had helped focus attention on these and other unlawful killings - was detained on 14 May 2007. This came after week-long accusations by the police about Sen absconding and of passing letters from Narayan Sanyal, a detained Naxalite leader whom he had been treating medically in the Raipur jail, to Pijush Guha, an alleged Naxalite under detention since 1 May. Sen, following his arrest, told the media that this charge had no basis since his meetings with prisoners were undertaken openly, with the permission of the Deputy Superintendent of Police and under the close supervision of jail authorities. Sen also pointed out that contrary to allegations of "absconding", he had been on a holiday (planned long in advance) and had returned as soon as he heard about the allegations.

 

The case of Irom Sharmila
(Source: Various newspaper reports)

 

• Irom Chanu Sharmila (1970 - present), also known as Sharmila Chanu, is an India woman activist of Meitei Manipuri heritage, known for her campaign against the controversial Armed Forces (Special Powers) Act, 1958, colloquially known as the AFSPA.

• Since November 2000, Sharmila has been on a fast-unto-death, demanding the removal of the Armed Forces (Special Powers) Act 1958 (AFSPA). AFSPA is a law that can come into force in any part of India declared as “disturbed”. The act allows anyone of any rank in the army or a paramilitary force under its operational command to shoot, arrest or search without warrant; and to kill on suspicion alone. Furthermore, there is little scope for judicial remedy. The whole of Sharmila’s state — Manipur — has continuously been under this law since 1980 (with minor exceptions in recent times).

• The Governor of Manipur has the full authority with regard to the declaration of ‘disturbed area’ in any part or whole of the state of Manipur, with, of course, the aid and advice of the council of ministers. The ‘disturbed area’ status of the entire area of the state of Manipur under the AFSPA was reaffirmed in the notification issued in the Manipur Gazette Extraordinary No 131 dated June 13 2000. As per the notification the declaration is to expire on June 1 2002.

• It was on 15th July 2004 that around dozen elderly and respectable Manipuri women marched to the area headquarters of the Assam Rifles and stripped naked and waved a banner which read as : "Indian Army Rape Us", "Indian Army Take Our Flesh".The naked march of these women electrified the masses and within no time the protests against the army reached new heights.

 

 

The murder of Lalit Mehta
(Source: Right to Food India)

• Lalit Kumar Mehta, member of Vikas Sahyog Kendra (Palamau District), was brutally killed on 14 May 2008 as he was returning from Daltonganj to Chhattarpur on a motorcycle

• Lalit (aged 36), an active member of the right to food campaign and Gram Swaraj Abhiyan, has been working in this area for more than 15 years on issues related to the right to food and the right to work. He was a very gentle person and his work was widely appreciated. However he was also fearless in exposing corruption and exploitation, and often came in the way of vested interests.

• At the time of this incident, Lalit was helping a team of volunteers from Delhi and elsewhere to conduct a social audit of NREGA works in Chainpur and Chhattarpur Blocks of Palamau District. Attempts had already been made to dissuade the team from conducting this investigation, particularly in Chainpur Block.

 

According to the [inside]India-World Report 2009 from Reporters without Border[/inside], http://www.rsf.org/article.php3?id_article=30988:

• India that claims the distinction of being the world’s largest democracy provides a legal framework that is largely favourable to press freedom. Indian journalists take pride in their freedom and will defend it robustly in street protests or before the courts. The Constitution is on their side and guarantees free expression in Article 19, but on the condition that it does not conflict with the “sovereignty and integrity of India”. However journalists’ safety is precarious in some states in which press freedom is under threat from politicians, religious groups and criminal gangs.

• Islamist attacks on Mumbai were shown live on Indian television. The courts reacted by banning channels from showing some images and statements by the gunmen and the government proposed guidelines for coverage of terror attacks. An anti-terrorist court in March imposed a blackout on the trial of an Islamist group for bombing a train in Mumbai.

• The justice system, under pressure from religious groups or corrupt officials, does sometimes abuse the use of charges and detentions against journalists. An editor and two assistants spent ten days in prison for publishing a book condemning violence against the Christian minority in Orissa state in the east. They were charged for violation of Articles 153-A and 295-A of the Indian criminal law by publishing “provocative literature that could upset communal peace and harmony”. An editor in Karnataka state, southern India, B. V. Seetaram, said he feared for his life after he was arrested when a libel suit was brought against him by supporters of the local authorities.

• In March, 2009 three editors who had recently been arrested by the police jointly condemned growing pressure from “fundamentalists”. “Before arresting anyone, the authorities should check that the law is applicable in the case” said Ravindra Kumar, editor of the daily The Statesman, based in Kolkata, who in February was charged with “offending religious sentiments”. Under pressure from a Muslim organisation, the newspaper was forced to apologise over an article condemning the erosion of freedom to criticise religions.

• Three journalists, including an editor, have been murdered since the start of 2008 in the north-eastern states by armed separatist groups or pro-government militia for speaking out against the chaotic situation in these regions. In Chhattisgarh state, central India, where security forces are fighting Maoist guerrillas, local reporters are regularly accused by police of being “Maoists” and by insurgents of being “traitors”.

• Security forces battling separatists and facing popular demonstrations in Kashmir sometimes crack down hard on media, who are accused of throwing oil on the flames. The press endured a “black month” in July 2008, when a cameraman was killed, 35 journalists were beaten by security forces, local television stations were censored and press distribution was hampered for several days because of a curfew. Police violence of this kind, chiefly by officers of the Central Reserve Police Force (CRPF), is rarely punished. Journalists in Kashmir do not enjoy the same legal protection as their colleagues in the rest of the country.

• Criminal gangs are however a threat to investigative journalists throughout the country. A reporter on the Hindustan Times in Bihar state in the north-east was shot dead in November while reporting on drug trafficking in the region.

• Foreign journalists are not always welcome in India. Some US, British, French and Swedish reporters have been denied visas because their names appeared on a blacklist. Two Swedish journalists had their visa applications turned down after putting out reports about social problems in India. Some foreign correspondents faced excessive delays when they applied for press visas in the run-up to the 2009 elections.