- Undertrial and Error:Tens of thousands of Indians languish in jail, waiting for their cases to be heard
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MUMBAI—When Arun Ferreira went to prison, his family told his two-year-old son that his daddy had gone on a long business trip. That trip lasted four years and eight months. An activist involved with the far-left Naxalite movement in India, Ferreira was arrested for sedition in 2007. He always denied any wrongdoing—he was organizing nonviolent political demonstrations, he said—and was acquitted of all charges in 2012. When he was released, he’d missed all the big moments of his son’s early childhood: his first words, his first day at school, birthday cakes, sports days, school plays, and everything in between.
When Ferreira was first charged, he didn’t think he’d be kept in jail long. After all, he hadn’t done anything illegal. While he was organizing social movements, his fellow Naxalite leaders had warned him that the work was dangerous and that others before him had been detained, but Ferreira shrugged it off. Imprisonment would last for a few days, perhaps a few months at most, he had thought. Even when he was initially taken into custody, he consoled his family that the police had no grounds to hold him. So when they filed nine cases against him, he couldn’t believe it. “Their logic seemed to be that whether or not I got acquitted was another thing. At least they had me in police custody,” he said.
Ferreira is one of thousands of people in India who have spent years in jail before their cases were even heard. Right now, India’s jails hold more people waiting for their trials than people who have been convicted of crimes. Lengthy trials are so common that locals use the term “undertrial” as shorthand for a person who is languishing in jail but has not been convicted of any crime.
A number of undertrial cases involve people serving the entire term of their sentence before the end of the trial. In one of the longest recorded cases, Machang Lalung, a man from the northeastern state of Assam, spent 54 years in jail on charges of causing grievous injury, the maximum sentence for which is 10 years. After a year in prison, he was admitted to a psychiatric hospital. Sixteen years after that, doctors said that he [End Page 87] was “fully fit” and should be released. But instead of going home, Lalung was taken back to prison in the Assamese capital, Guwahati. For five decades, Lalung’s case did not come up for hearing. When he was eventually released in 2005, aged 77, not a single person from his village could recognize him. A human rights activist, Sanjay Borbora, told the BBC at the time, “It seems the police just forgot about him.”
While waiting for a date in court, under-trials live in jails and are treated as convicted criminals. The majority of people in India’s jails—some 68 percent, according to the National Crime Records Bureau—are undertrials. Out of 418,536 incarcerated individuals in India, 282,879 have not been convicted of a crime, according to 2014 figures. This makes India among the worst countries in the world for the proportion of undertrials, alongside Libya, Bolivia, Democratic Republic of Congo, and its neighbors Pakistan and Bangladesh. In the U.S., with its own criminal justice issues, undertrials make up about 20 percent of the prison population. Given those statistics, it’s no surprise that India’s jails are facing an overcrowding crisis, with some housing two or three times their capacity.
A few months ago, the chief justice of the Supreme Court, Tirath Singh Thakur, delivered a tearful plea to Prime Minister Narendra Modi, urging his government to take the plight of undertrials more seriously. “Speeches have been made in the past … in Parliament and all, but I think nothing is moving,” he said.
This legal logjam is nothing new. The Modi government, like...