AREAS OF INTERVENTION:All the problems relating to the prisoners in all the states, because of the black laws of the states, and the solutions, through law and PIL were discussed in the session held on 13th and 14th of April, 2012.
Day 1, 13th May 2013
Brief:The meeting was started by Mr. K.K. Roy and Mr. Colin in light of Bhullar’s Case where an innocent Professor of Engineering was charged of being a terrorist and was awarded death penalty without proper evidences and witnesses.
The Main aim of the meeting was to teach the Lawyers and Activists how to use legal system for prisoners and focus was on the legal system. There are many social activists who are helping HRLN in this legal aid campaign. The agenda was to build network of the activists who can help to provide legal aid to the prisoners on the national platform.
Mr. Nihal suggested that we should train the Social Activists to file PIL on relevant issues so as to improve the working of the prison society of India.
Kamalnath Pandey asked the activists to focus on the states of Jharkhand and Odisha. Where Kirti Roy questioned that how can we change the condition of anything by PIL when the ministers themselves say these days that the system is rotten, and in case of conflict prisoners should be granted bail on surety bonds but even then the faults continue to prevail.
Some examples were raised by some participants like in case of Kasab the fundamental right f Legal Aid was never provided and another was about the rule in Maharashtra which dictates that if a person is arrested he should immediately be provided legal aid but this rule is almost never practiced in the state.
M.Z. Khan said that the prisons are rotting because they are not the priority of the Government. He had visited many prisons of state and national level and had seen the problems of corruption such as Narcotics and homosexuality inside the prison premises. He also saw the poor conditions of the inmates in the prison. He also said that the staffs is appointed without training and the problem that the commanding officers are not from the same department further enhances the problem as they do not understand the ground realities of the prison.
Some more cases were discussed like in case of Hussainara Khatun the inmate was not released on time in order to take vengeance and in Khatri vs. State of Bihar legal aid was not provided. Now it is the responsibility of the court to see that legal aid is provided and the rights against torture are ensured to the inmates and the acquitted or bailed out inmates are released on time. In Ranjan Desai case huge compensation was awarded by the court for the inconvenience in prison. In the judgment of Sunil Batra’s case the court ordered that the jail’s condition should be checked on weekly basis and the complaint box should be properly checked.
In Best Bakery Case High Court ordered for enquiry on transfer given by Special Court and punished the prison officials for bad treatment of inmates.
In Sheela Barse vs. State of Maharashtra it was ordered not to keep the mentally ill prisoners in jail. In R.D.Upadhyay vs. the State of A.P. the issue of the age to which a child had to remain in prison with the women prisoner was raised.
Advocate, Mr. Ajay Verma said that overcrowding in prison is the biggest problem in prison management and even though the Motiram judgment was given in 1978 but till date it has not been implemented. The legal aid is not very successful in India as prisoners are forced for plea bargaining and it is not the best way to counter the problem of overcrowding. The Legal Aid system in India is corrupt in a program run by IBJ in 100 out of 180 cases taken up by them the implementation of judgement was absent.
A Bangladeshi inmate was arrested for theft and murder at the age of 13, was not given juvenile advantage, he was sent to FRRO camp before being deported to Bangladesh even after being acquitted by the High Court after being found to be juvenile.
What adds to the miseries of the inmates is when Security officials misbehave with the inmates. In Alvar Jail with the help of CHRI and IBJ wardens and other officials were trained. Likewise a lot of issues can be resolved by education and paralegal training of the prisoners. Kasab was said to be given legal aid at trail but no legal aid was given at Police Station. Collective effort should be made to provide legal aid right from the level of police stations. So that people could be bailed on personal bonds and so that legal aid and freedom could be availed to Bangladeshi inmates also.
Mr. Collin said that prisoners who have completed more than half of the maximum sentence that can be awarded to a person charged for the offence can be released on personal bond according to Sec. 436 and 436A of Cr.PC. in Bombay a lot of prisoners were granted bail and released on personal bonds. People are languishing in prisons for bail-able offences also because they have not applied for bail as they are not aware of the provision. And hence spreading awareness is the need of the hour.
Mr. Abhishek said that the system of bail should be made fare, and the trails should be made speedy and fair in order to improve the plight of the prisoners.
There are three problems with regard to bail. These are:-
1. Illiteracy/Lack of Awareness
2. Financial issues &
3. Lack of Lawyers
Today a poor person languishes in jail because he cannot afford to get bail. People are not produced in jails on their dates and thus, they do not get bail. There must be clear guidelines as to how would the bails be explained to people. Illiterate people should be made understood with public announcement. Personal bond must be granted. Person in petty offences police can release them in Police Stations and they need not to go to the magistrate.
Prisoners are asked for very high bond amount, police surety and solvency report, this must be standardized. Prison welfare office should look into issues of jails.
If guidelines are not followed PILs should be filed in their regard. PILs and RTIs should be used more effectively for this purpose.
Advocate, Parthosarthy Das shared his experience about his visits to correctional homes. Prisoners told that they were not produced on their dates. Each and every personal lodged in lockup should be produced in the court. Nowadays the court does not see the details but only the section and on the basis of it, it gives bail. If the section is bail-able then the bail is given and they do not apply their judicial mind. PIL should be filled about courts seeing the gravity of the offence for bail and not just the section. If a person is going to magistrate with legal aid lawyer then bail should be granted by personal bond or on bail given by legal aid board. Panel of surety persons so that if magistrates get a bail application then the surety persons gives bail, this has become a business and this should be abolished.
Sister Suma Sebastian, HRLN, shared that India has 6th largest number of prisoners. 2,40,000 of which are under-trials. And 65,000 are between 18-30years in age, 89,000 are from 30-50. And only 42.5% are educated only till class 10th. Prison system is correctional in nature and the state is responsible for rehabilitate them and the state should take responsibility to make these institution correctional in nature. Prison should be like hospitals to correct. Prison manual can get a lot of relief. Constitutional provisions are there but the condition in actual is different. Custodial deaths are not properly investigated by the prison and the judicial authority. Access of potable water to prisoners is also an issue. Legal aid should be provided to the needy prisoners. Majority of prisoners are from low income group. Police takes money for address verification. Various malpractices are done by prison authorities. In most of the cases, the amount of surety is too much for poor people. Poor prisoners confess their crime under pressure. Something needs to be done for them.
In the discussion and suggestion round various ideas were given by the participants, some of which are discussed below.
In Bihar people are not able to avail bail because they are not able to avail sureties something needs to be done in this regard and also a PIL should be filed for allowing the children and family members to meet the imprisoned under-trails. The cases in which bail can be granted in 60-90days the bail application is rejected because charge sheet is not produced at the right time.
A proviso has been passed by high court, when charge sheet is submitted then people are sent to jail even in petty cases. PIL must be filed with regard to surety for the poor people. When thana can give bail why cannot we do away with the system of surety in appropriate case.
In Assam lower judiciary has mentality of not giving bail in non-bail-able offences. Judicial officers should be trained properly. Case diary is filed by the police and they charge money for sending good case diary.
Judiciary is nothing less than police. Police puts more number of sections to make a heavier case. Court does not read the story of the accused and only goes by police version. A proper study should be done as to on what basis the bail has been given by the judge.
Special act creates problem for example excise issues are made non-bail able offence in Chhattisgarh. Cases of liquor in small amounts have to be taken to high court for bail. 173 (2) is used by rich people to get bail while poor tribal’s are not able to get bail in liquor sale case.
When applications for bail are filed then judiciary calls for report from the police for the said FIR and the other FIRs with regard to that person, but the police sends the report of only that fir and then arrests that person in another FIR.
Knowledge about Juvenile Justice Law is poor, 16 December gang rape case there was a discussion. But there is no knowledge even amongst the judges. The attention towards JJ act never goes, people want to stay away. When we visited Tihar, we noticed that how legal aid lawyers are working. We have lawyers, but who are not informed. In schools the J.J. act of 1986 is followed.
Birth registration was a issued raised in the PIL. Even if you know that there is a person who is less than 18 in prison. Problem is not having birth certificate. The other issue is, shifting of children from Tihar to observation homes. Even if you spend a day or two in Tihar you become something else. There is very less scope of understanding these children and reforming them. Superintendent complains about inability of handling such children. Research is poor, intuitively we say it is bad but we don’t do much about it. Need evidence for further advocacy. There should be a manual for magistrates also. Judgments give life imprisonment to juveniles.
The number of juveniles involved in heinous crimes is increasing over the years. Children get involved in crime again and again. Why do they commit crime, the conditions due to which they get involved in crime? If a child only sees drug abuse and violence in his family he would not know right or wrong. Mental health counselling is required. Trained, experience and qualified counsellors are not there.
Age memo has to be mentioned with arrest. 21 years of age is to be verified by police, magistrate and welfare officer of prison. Even after these three check point still children are languishing. Police at the time of arrest ignores the age at times because child looks like an adult or child lies to police or the child does not know. Police never takes for ossification test and ultimately child produced in the court.
Never allow juvenile status, free legal aid. When children are transferred, the IO does not get informed. Children are transferred from prison to observation home. Welfare officers should be increased in each observation homes.
Through judicial intervention, advocacy, home ministry. Responsibility through PIL should be taken; order of court taken into consideration.
In jail there is corruption and discrimination, more privilege is given to the rich people, they are given all the facilities. While the poor people are not even given right for their basic needs like praying. The religious minorities are facing many difficulties in the jail; Muslims are being tortured on this basis. Muslims are always brought to the jail with label of terrorism and Christians are labelled as convicts for doing conversion and thus a biased attitude continues in the jail.
Custody means police and judicial. When a person is arrested he is called as UTP-under trial prisoner. The accused has to be physically produced in front of the magistrate and the magistrate has to examine the evidence. This is the general procedure in India. With this we have to check how much independent is the judiciary in our country.
Lawyers going to meet naxalite, their conversation recorded, pictures clicked. A lot of witness for the cases are not produced by the police themselves. Whenever it’s a naxal crime, just in the name, people are punished not given fair trial. Koparam: internally displaced he was booked in a false case, he got bail only through Supreme Court.
Legal Aid lawyers are not enough and not much chance of defense for the lawyers. Lawyers are also booked in a number of cases. Narainpur Bar President was booked, tortured because he had tiff with police. They picked up his daughter and son just because he had a tiff with police. Lawyers are booked in National Security Act and other act. Lawyers fighting against JINDAL are even booked for grievous crimes.
Action Plan:
o The law commission suggested that, if any injury was found on an accused it should be assumed that the official who was in charge of the accused must have committed it unless the official proves the contrary.
o Make the age memo rule strict which is to be mentioned with arrest. 21 years of age is to be verified by police, magistrate and welfare officer of prison.
o Spread awareness about bail and motivating more lawyers to take up bail cases.
o Welfare officers should be increased in each observation home where children are sent.
o PIL for Miranda Warning to be given at the time of arrest, so as to Accused can avail legal aid from the time of arrest.
o Providing Safety to Lawyers who fight cases for Naxals.
o Spreading knowledge about Juvenile Justice Board.
Day 2, 14th April 2013
Brief:Mr. Rajiv Yadav discussed about Nation Legal Services Authority (NaLSA). He told that NALSA,1987haslaiddown policy for the prisoners. In which free Legal Aid is provided to women, children and poor SC/ST who have an income of less than 1 lakh per annum. In SC the LSA solves various disputes and NaLSA frames schemes to provide Legal Aid. Settlements of disputes are dealt in NAREGA, and to the victims of the mass disaster are brought to NaLSA and NaLSAprovides training,and according tonational regulation of 2010 it provides free legal aid too. MonitoringCommittee is appointed for them and if it is needed NaLSA appoints Senior Advocates also. Ration card ID is provided to them if it is needed and scheme for the mentally ill are made in accordance 1994 Mental Act.
Adv. Anup Bhambani said legal aid should be provided right from the time of arrest. And the accused/arrested should be briefed about his rights like the Miranda warning is given in the US.
Officer follow the Cr.PC, witnesses are examined, basis of the criminal proceeding is laid in such cases, in Kasab’s case it can be learned that the legal aid should be provided at the very instance of the arrest of the person and families should be informed.
System allows the Lawyers to interact with the accused which is really required but no privacy is provided and sufficient time is also not provided, in such situation it is very difficult for the accused to narrate his case.
More than 40% of the inmates in Tihar are illiterate and due to this the Ministry of Human Resources started literacy program. This will help in their rehabilitation is the society after they have completed their sentence.
Adv. Ajay Verma who works with Legal Aid Authority in Delhi said that Legal aid has grown a lot in the last decade. He talked about the inefficiencies in the legal services and suggested that the rule of Miranda warning should be practiced in India.
Mr. Jouhar said in the Chittawra district of Bihar if a case comes up where there is no lawyer to represent the either of the parties the judge asks the lawyers to take such cases but they are paid ₹800 for each case irrespective of court expenditure, external financial help should be provided to such lawyers.
Mr. Colin said this is a speech for reform, like JJ act has been. Legal aid is in a bad shape. Delhi is trying to change and no NGO is providing legal aid like HRLN. The Legal aid system is far better than rest of the country and the ideas and ideals from Delhi should be taken outside.
Right to life has been recognized internationally, Indian state should abolish death penalty, if we have to resort to death then as a system we are failing. State taking life of individual is not the way of reformation thus there is need for the abolition of death penalty.
Right to life is a fundamental right under Art.21 of C.O.I. and state cannot take away something which has not been provided by it in the first place.
We can never assure that our justice system is full proof and the right person is getting punished. Law is not a mechanism for vengeance. We should remember an eye for an eye will make the world blind.
98 out of the 194 nations have abolished death penalty and others are considering of de facto abolishing it. India should also set forward a foot to getting over such practice.
This is a mark of a fail civilization and as a society which believes in rule of law, that we claim to be, should we practice it.
In the prison of Bhubaneswar, Bangalore, Goa there are around 300 adivasi all accused under NDPS Act, work as peddler to transfer ganja. Lot of mafia involved in such cases, needs to be stopped in Warangal and Vijayawada. For the adivasis it is very difficult to get a bail. There are more political issues involved in such cases than legal issues. The entire country has no women doctor posted. There is advisory board only for name, it is there to work for reform of prisoner but not doing it.
The nation in name of instant justice is hanging people, we want to punish the accused and not follow the law.
We must understand that public opinion; there is no tip of the law. Despite so much of human rights, where did we find public opinion? There is a larger opinion fail to democratize, human rights opinion. No democratic ethos and norms. What are the principles we are fighting for? People feel defenceless.
NHRC finalized that encounter by police were fake. This is the level of corruption. We need to think outside the domain of law also to provide social justice to people who need it the most.
After Kasab judgment SC has not done anything new, a person has right to legal aid lawyer from the day of arrest. Person arrested should be informed immediately about his rights and should be given legal aid.
Right to counsel should be available at all stages. There should be a paralegal posted at every police station to aid the people aa soon as they are arrested. Delhi HC issued direction to legal service authority, where those lawyers who are having experience of 7 years or more should offer legal aid.
Two years back 17 Indians were awarded death penalty in Sharjah and they were totally unaware of the trails and the language of the court and they were still not given any legal aid.
Safe homes have been made in Punjab where runaway couples can get married and if their families continue to oppose the marriage they are even called for weddings.
women in prison are not provided with woollen in chilling winter and upon asking the answer was that the funds were not available for woollen clothes. State does not do any favour to children in jail with women by treating them well. Conducted a survey with another organization Hifazat in MP, and found out that women with children are not provided with extra meal or any special meal for lactating mothers. No medical facilities. For entire MP there is only one lady physician for jails. No education facility in prison and only play grounds are available. All of the above has affected healthy life of the children and their right to get good environment. The work in this regard needs to be done in a time frame, appointment of women gynaecologist in the jails of MP, open jails, opening of schools inside the jail. State should also assume the responsibility of children who are of more than 6 years and who do not have any guardian to look after them. The condition is same in the whole country.
Sheela Barse V/S The State of Maharashtra. Suggestion made by HC the said case is every arrest shall be reported to legal aid committee. Police stations should have different lockups for men and women.
More than 100 deaths have occurred in custody and no judicial probe is being ordered. recently an incident occurred in which a women died in a jail and superintendent when called up was not available for meeting. We should file a PIL on compulsory judicial probe on death of the inmates in the jail.
Ramdas Kubale case was a case of an undertrial death and 32 undertrials have died in jails and after this the policy on HIV was made.
we are trying to setup legal aid clinic in Dantewaada, but setting up legal movement is not sufficient political movement should be started alongside it.
Action Plan
o If there are first time offenders who are medically weak they should be given bail on issues like: aids, TB, heart disease etc. prison manuals are not being given to the inmates thus in A.P. with help of LSA a pamphlet was prepared and distributed in the prisons.
o Prepare a list of prisoners with profiling which should be available on demand. RTI’s must be filed to get information from the jail authorities in 436A.
o All details and profiles of the prisoners in Bihar shall be made public and then PIL must be filed. Prisoners must be sensitized and educated about their rights.
o There should be some fixed responsibility for everyone and there should be some loose network to work this out. Justice delivery system does not work properly if we are able to come up with some figures then we will be able to come up with some positive results.
o Legal aid lawyers are not accountable to their clients. NaLSA should issue guidelines that legal aid lawyers shall compulsorily brief their clients about the progress in the case. training of women in jails of M.P.
o Comprehensive PIL on legal aid system and on prison staff should be filled. Prisoners of unsound mind shall specially be considered.
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