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Monday 9 January 2012


A Hell In Eternity
Greedy lawyers and lack of awareness condemn women undertrials twice over

Hasina, Delhi
Crime: Murder
Status: Undertrial for two years
“Organising money to fight my case has become very difficult. I don’t think I will leave this place in the near future.”

Kanimozhis All?
  • Total number of male and female convicts in India: 1,23,941; Number of undertrials: 2,50,204
  • Number of female prisoners: 15,406; Female undertrials: 10,687
  • Female prisoners compromise 4.1 per cent of the prison population
  • 469 women convicts with their 556 children and 1,196 undertrials with their 1,314 children are in prisons across the country
  • Official capacity of prisons in India is 3,07,052. But occupancy level is at 122.8 per cent.
The Tihar jail in New Delhi was the focus of much attention all of last year as high-profile corporates and politicians—former telecom minister A. Raja, Rajya Sabha member
K. Kanimozhi and Congress leader and ex-president, Indian Olympic Association, Suresh Kalmadi—found their way in here.

While Raja and Kalmadi elicited no sympathy, each time Kanimozhi was denied bail, her family, politicians, legal luminaries and socialites cried foul. They pleaded that she should be set free on the grounds that she is a woman, a mother and that charges had already been framed against her. Finally, after high-profile lawyers pushed her case both in the court and in the media, she was granted bail on November 28, 2011.
In judicial custody for over six months, she was given a separate cell in the women’s section, equipped with a bed, a television and a toilet. While in jail, the poet-politician spent her time reading books, interacting with children at the inhouse creche and making regular court appearances.
Other women undertrials, however, are not as fortunate or privileged as Kanimozhi. As many as 10,687 women undertrials languish in jails across the country, waiting month after month and year after year for their cases to be heard and for bail to be granted. Tihar, considered to be a model jail, currently has 545 women in prison, of whom just 112 are convicts; the majority (433 women) are undertrials. Ironically, in fact, many of them have served far more time as undertrials than the sentence their crime attracts. Pleas of being a woman or a mother garner them neither sympathy nor media attention and legal assistance.
Salma’s is a case in point. Originally from Bihar, she has been in Tihar for five years now as an undertrial for abetting a murder. A widow, her two young sons fended for themselves for two years but then had to be put in an orphanage since there was no one to take care of them. The lawyer who was appointed for her by the government for free legal help has met her twice in the past five years. Once to introduce himself, and the second time to tell her that her case would proceed only after he was paid money!
It took Salma three years to arrange for Rs 5,000 to be paid to the lawyer outside the jail. We met her the day after her case came up for hearing. “My lawyer did not show up yesterday despite being given the money,” she told us, breaking down. “I can’t get around the system legally or illegally. No one cares that I have two sons in an orphanage.”
Speak to Tihar law officer Sunil Kumar Gupta and you would get a very positive picture. “A legal aid and counselling venture is functioning from the jail complex, where a panel of lawyers is available for poor convicts before the Delhi High Court,” he tells you. “Their services include the regular drafting of applications/petitions/appeals of poor and illiterate prisoners. Special courts are organised on a monthly basis at the Tihar Court complex for minor offenders. During 2011, a total of 20,006 male prisoners and 108 female prisoners were provided legal aid through visiting advocates and paralegal aid.”
However, with 66 per cent of the inmates being illiterate, they are unaware that free legal aid is available to them on the jail premises. Then, widespread corruption undoes much of the good work. “Jails are a goldmine for a section of lawyers,” says lawyer Ajay Verma. “It is where they can extort a lot of money, which is why they prefer prolonging the cases instead of ensuring a speedy trial.” Minister of state for home affairs Mullapally Ramachandran himself acknowledged this in the Lok Sabha in August last year when he said that the cases of corruption in Tihar increased by 100 per cent, with at least 12 cases in the first seven months of 2011. This too would be far from accurate as a majority of such cases go unreported.
Given this scenario, the only recourse left to the undertrials is to hire private lawyers. That option too is foreclosed for most, as 77 per cent of them have an annual income of less than Rs 50,000 at the time of their arrest. So, Hasina’s six children work overtime to ensure she gets a decent lawyer. A single mother, she was earning just Rs 1,000 before she came to Tihar and has now spent two years here as an undertrial in a murder case.
The situation is much better at Tihar, which is a model prison and gets a lot of priority. The state of undertrials in other states, say legal experts, is much worse. “Delhi has a lot of awareness and there is a lot of focus on prisoners here,” says advocate Anu Narula, who has been doing pro bono work at Tihar for the past six years. “In the recent past, a large number of lawyers have been helping out at Tihar and this is speeding up cases. But across the country, there is absolutely zero legal assistance for prisoners. Even their living conditions are pathetic.” While the Manu Sharmas of the world get parole for any excuse, Manju, who is from Amritsar and sweeps floors at the jail for Rs 1,500 a month, did not get bail even to attend her daughter’s wedding. She has been an undertrial in Tihar for five years for allegedly murdering her neighbour.
Another problem, says Narula, is that even when the inmates get bail, there is no one to give surety or personal bonds for them. “A large number of women face this problem. They get bail from the courts but their families don’t want to pay the surety. This rarely happens with the male inmates. Also, if they do get out, they are often abandoned by their families and fall prey to criminals.” Getting bail in murder and dowry-related cases is tougher since the court feels that the litigant may be able to influence witnesses.
Finally though, say lawyers, the harsh reality as far as the Indian legal system is concerned is that when a poor person is involved, the investigation undertaken is shoddy, the effort taken to solve the case is less and the legal aid inadequate. “I wish more undertrials would complain to judges about the problems they face with the legal system,” says Narula. “Because then at least some correctional methods will be adopted.” Till then, the Manjus, Hasinas and Salmas of this world will remain trapped in hell forever.

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