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New Delhi: When 31-year-old Ashoka walked out of Mysore Central Jail after more than six years as an undertrial, he could only thank the kindness of strangers.

The farm worker from a village in Mandya district of Karnataka had ventured into car theft and admits to stealing five of them. But not the 40 cases filed against him.

The years he spent behind the bars still haunt him, but Ashoka is lucky. At least, he got out. According to human rights organization Amnesty International India, 250,000 Indians languish in jail without being convicted of any crime, awaiting their day in court. 

According to National Crime Records Bureau data, 68% of prisoners in India’s 1,387 jails in 2014 were undertrials. Of them, more than 40% remain in jail for over six months before securing bail. 

This, despite mandatory legal aid for undertrials and a helpful provision in law: section 436A of the Code of Criminal Procedure (CrPC) provides for release of all undertrials who have served half the maximum sentence prescribed for the offence for which they have been charged with.

Why so? Two reasons, primarily. Lack of legal aid and lack of coordination between jails in different states. 

Road to freedom

Ashoka was charged in more than 40 cases of dacoity and vehicle theft, and locked away. In February this year, he discovered that an inmate and a co-accused in one of the theft cases was released with the help of Amnesty, a name he could not even pronounce. He secured Amnesty’s phone number from that co-accused and asked his brother-in-law to get in touch with the organization. 

Ashoka still doesn’t quite grasp what Amnesty is, or what they do, but had it not been for the organization, he knows he would still be in jail, despite the 1977 landmark case—the State of Rajasthan vs Balchand alias Baliay— where justice V.R. Krishna Iyer had stated “the rule is bail, not jail".

As part of its Undertrial Justice Project, Amnesty International India is studying the reasons for excessive detention. The project began in July 2012 when it set up a national office in Bengaluru, which became operational a year later. Funds for the project primarily come from small donations by individuals.

According to NCRB, 68% of prisoners in India’s 1,387 jails in 2014 were undertrials

Over the last two years, about 70,000 Indians have made small donations and Amnesty International India has raised more than Rs5 crore. Of this, about 73% is spent on research, campaigns and human rights education. Donors mostly make their payments online, but the organization also has a team of 120 street fundraisers. It is such small sums of money from unknown donors that secured legal help, and eventually bail and freedom for Ashoka.

The Undertrial Justice Project essentially files Right to Information applications seeking information about undertrials from central and district jails. Project members then interview the undertrials. If the team identifies prisoners eligible for release under section 436A of CrPC, they refer these cases to the relevant jail authorities.

“Since the project aims at bringing about systemic change, Amnesty has not actively taken up individual cases. The efforts are focused on systemic change, which often takes time, and is difficult to break down into the impact on particular individuals," said Arijit Sen, manager of the Undertrial Justice Project. 

So far, the project has helped in the release of seven prisoners in Karnataka.

“There is apathy in the system towards liberty of citizens," said B.B. Pande, a retired professor of criminal law and criminology at the Delhi University. “Right from jail officials to legal aid, everyone takes the liberty of citizens for granted. These gaps in the system need to be filled by someone. These roles—of moving an application on behalf of an undertrial—are not roles assigned to anyone specific. Jail officials say it is the responsibility of legal aid; legal aid doesn’t take the responsibility. Not-for-profit organizations are required to take this role up." 

Researchers working on the project found information about five cases against Ashoka on the court website. They then visited Mysore jail, where Ashoka was detained, and found out about the 40 other cases against him. “When we systematically began collecting documents in his case, we discovered there were so many cases against him. After sifting through each of those papers, visiting the Mysore central prison and seeking help from a local lawyer in Mysore, we found out that most cases against Ashoka had already been disposed of. This information was not available to the prison authorities and what we did next was fill this communication gap," said Sukanya Shantha, one of the researchers who worked on the project, and who has left the organization recently.

For the Undertrial Justice Project, Amnesty International India has spent about Rs72 lakh since 2013, including costs of research, campaigning and advocacy. However, the task isn’t easy. The process of Ashoka’s release took over three months.

“I kept getting arrested on false charges. I had to look for ways to pay off the money, people were paying for my bail every single time I was arrested. I couldn’t have paid off people with the money I earned from my work," says Ashoka, whose first arrest was in 2007. He later started working as a painter in Bengaluru. 

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A government lawyer in Mysore never even spoke with him. The only time they met was in the court. Article 39A of the Constitution provides free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability.

“Working on Ashoka’s case helped us understand several gaps which can easily be plugged but are often ignored, leading to overcrowding in prisons," said Shantha, stressing that the problem is a mix of overcrowded prisons, overburdened jail officials, understaffed and underpaid legal aid, and the socio-economic profile of most undertrials. Prosecutors lack basic facilities, such as access to legal databases, research and administrative assistants.

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On his release, the Amnesty team informed Ashoka that since he had already spent more than six years in prison for charges which would attract a maximum of three years, he was a free man. Today, Ashoka is back in his village, working again as an agricultural labourer hoping that he never sees a prison ever again.

What a donation can do

Amnesty doesn’t take donations from people for specific projects. However, contributions can help researchers and campaigners to file Right to Information applications, visit prisons, conduct research and advocacy, and campaign for legal reform. Contact: www.amnesty.org.in

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Updated: 06 Oct 2016, 05:15 PM IST
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