Why Migrant Undertrials Struggle To Furnish Bail & Access Timely Legal Aid

He was arrested in January 2019 and charged under the stringent Maharashtra Control Of Organised Crime Act (MCOCA) for a first-time offense of carrying firearms and accompanying an accused who was part of a gang. Sohan, a non-literate and a person with disability due to polio, is from the Mallah community (traditionally fishers and boatmen), categorised as an ‘Extremely Backward Class’ in Bihar.

He earned a meagre livelihood working for daily wages, or selling fish. “I make about Rs 300-500 a day if I find any work, or get fish to sell,” said Sohan, who is in his late forties. “It is barely enough for my family. Peth ke liye kiye the [I did it to feed my family],” he said.

Sohan, a poor migrant from a marginalised caste, was finally given bail in November 2019, on condition that he provide a local surety of Rs 50,000, but lacking any ties with the local community, he found it impossible to meet the requirement. He remained in jail until his eventual release in August 2020, at the peak of the Covid-19 pandemic.

All undertrials, except those with privilege, endure difficulties in engaging with the justice system, but those who are from other states without local ties, like Sohan, find it even harder, according to a report by Project 39 A, a criminal justice research and litigation centre part of the National Law University, released on March 18, based on their Fair Trial Fellowship (FTF) programme.

The report presents data based on legal aid work from January 2019 to March 2021 in Pune and Nagpur central jails. The report concluded that for the judicial system, migrants--who also lack documentary proof--were characterised as having a “lack of ties within the community” which was an impediment in bail compliance “even in petty cases”.

In the two-year period in question, FTF was able to reach out to 2,313 undertrials, and more than 1,027 required detailed interventions, where legal services are provided by the District Legal Services Authorities. Of these, 11.3% (116) had current and permanent residence in other districts within the state, and 8% (79) had outside the state.

IndiaSpend has earlier reported that factors like poverty, caste, religion and access to timely legal aid affect the ability of undertrial prisoners to furnish bail. In the 2023-24 Union budget, Finance Minister Nirmala Sitharaman had announced that for “poor persons who are in prisons and unable to afford the penalty or the bail amount, required financial support will be provided”.

“During my time in jail, I used to think about my family a lot and feel sad,” said Sohan, who felt that if he were incarcerated in Munger, at least his family would have been able to visit him or get help for his bail.

Lack of local ties and poverty

As of December 2021, more than two in three of the 554,034 prisoners in India were undertrials. In 2021, there were 423,015 undertrial prisoners, excluding foreigners. Of these, 9% were migrants or as NCRB classifies them, those who ‘belong to other state’ than where they had been incarcerated, according to the Union government’s 2021 Prison Statistics India (PSI) data. This is similar to the average between 2017 and 2021.

According to the FTF report, nearly 43% of clients with detailed interventions had at least one special need. This included medical history (both physical and mental health), disability, ongoing education, child in prison (below 6 years), suspected juvenility, no contact with family, terminal illness, or were migrants.

The hardships of imprisonment and facing criminal charges are aggravated in the case of migrants, said Monica Sakhrani, Program Advisor, FTF, and co-author of the report. “One of the reasons for this is lack of family and other social support.” Nearly 63% of detailed intervention clients did not have contact with their family.

In 2021, those undertrials domiciled outside the state--that is, those who belong to another state than the one where they have been jailed--increased by 16.4% compared to 2020, and by nearly 44% compared to 2017, according to PSI data.

“Migrants are also more likely to lack local documents or address as most of them are from the informal sector and live on the streets or in shanties near where they work, such as construction sites,” said Sakhrani. “Bail compliance is especially a challenge for such people--particularly finding sureties locally.”

Sohan’s lawyer Hemant J. Jha, a former Senior Legal Fellow at FTF and Deputy Chief Legal Aid Defense Counsel, said that Sohan was arrested in January 2019 and initially charged under Section 3/25 of the Arms Act, where it is easier to get bail. But during investigation, due to the criminal antecedents of the co-accused and the possibility of gang involvement, MCOCA was invoked, which made the existing bail application in the sessions court infructuous. Cases under MCOCA are heard in a special court.

The application for conditions of bail modification for his release, in order for him to travel home for his mother’s last rites, was rejected by a Special MCOCA court due the serious nature of the charges and the concern that as a migrant, he “may flee from justice”.

“There are two broad issues migrants face; weakening or absence of family ties, and poverty,” said Vijay Raghavan, professor, Centre for Criminology and Justice at the Tata Institute of Social Sciences (TISS) and project director of Prayas, a field action project of TISS working in the criminal justice system.

“Often the undertrials are reluctant to inform family members for fear of losing respect in their community or tarnishing the family's reputation, and even if they are able to inform the family, poverty hinders the families from coming forward to support the prisoner,” he said.

Undertrials usually approach social workers for legal aid, because inmates may have dissuaded them from accessing government legal services. “Despite their best efforts and interventions targeted towards improving utilisation of [government] legal aid, the [FTF’s] outreach to the undertrial prisoners within the prison appears to be in small proportion to the total number of admissions in a year,” said the FTF report.

Sometimes the prisoner may take help from a fellow prisoner who has money or muscle power or knows how to work the system--but this may lead to the criminalisation of first-time offenders, said Raghavan.

In Sohan’s case, due to his helplessness, his co-accused who had travelled with him from Munger to Nagpur helped him secure his release.

Experts said that jails are overrepresented by marginalised populations, including marginalised castes and communities which include migrants. Two in three prisoners under trial belong to Scheduled Castes (SC) and Tribes (ST) or Other Backward Classes (OBC), data show, and two in five undertrial inmates are educated below grade X while more than a quarter are illiterate.

In Nagpur and Pune too, this is the case. While Nagpur and Pune have an SC population of 19% and 13% respectively, according to the 2011 census, at least one in four clients of FTF were from the SC community, said the report. Similarly, in Nagpur, clients from ST communities accounted for 5.3 percentage points more than their population share, while in Pune, they accounted for 2 percentage points more.

Maharashtra has the most migrant undertrials

There were upwards of 60 million migrant workers in Mumbai, Kolkata, Hyderabad, Chennai, Bengaluru and Delhi, based on Census 2011. Nearly 33% of these migrants hail from Uttar Pradesh while 15% were from Bihar.

Maharashtra reports the most percentage of undertrial migrants from other states, according to PSI data between 2017 and 2021. This ranges from 22% of the total undertrial population in India belonging to other states in 2017, to a low of 14% in 2021.

But these NCRB data might not show the number of migrants. Raghavan said that the NCRB domicile data on prisoners from other states could also include those who have been in the state for over two or three generations, and therefore you cannot accurately conclude the number of migrants based on domicile data. “They may be from outside a state but for all practical purposes, they are locals”, he said “…….. [because] they have a state domicile does not mean that they are not a migrant, and prisoners domiciled outside may not necessarily mean they are migrants.”

The FTF data are bifurcated to include those from different districts in Maharashtra and current and permanent residents. “These distinctions are crucial legally, as not having roots in the community adversely impacts the ability of clients to furnish bail as well as avail legal services,” said the report.

According to FTF’s data, in Maharashtra (Nagpur and Pune), 11.3% of FTF’s clients were from other districts of the state. In Pune, 23% of the clients were those whose permanent address was not Pune, while 11.5% in Nagpur were from other districts in Maharashtra.

In Pune, 3% of undertrial prisoners were from outside Maharashtra, while that figure was 18% in Nagpur, indicating that there are more migrants from neighbouring states in Nagpur jail, according to FTF data.

“Nagpur also has a substantial number of people who are more settled with or without their families living in shanties, while Pune appears to have people who migrate for seasonal work, often with families,” said Sakhrani. She added that Nagpur has most migrants from neighbouring Madhya Pradesh, while there are some from Bihar and Odisha. The economic distress in these states are push factors in migration.

Mumbai and Thane districts have a largest number of migrants from Uttar Pradesh, West Bengal and Bihar, while Latur has a sizable population from Karnataka, said a January 2023 report by Prayas and FTF covering the period from 2018 to 2021.

IndiaSpend has asked for comments from the Ministry of Law and Justice, Ministry of Home Affairs and the National Crime Records Bureau on data on undertrial prisoners from other states, increase of migrant undertrials, the government’s plans on implementing bail support as announced in the budget, and legal aid for incarcerated migrants. We will update the story when we receive a response.

The circumstances are similar in Karnataka too where around 8% of its undertrial population was from other states in 2021. According to a 2022 two-volume report by the Karnataka State Legal Services Authority and human rights non-profit Commonwealth Human Rights Initiative (CHRI), prisons in the border regions have inmates from neighbouring states.

The report added that in bigger cities like Bengaluru, which has a sizeable migrant population, “the demography of the city is reflected in the prison population”. Many of the inmates from other states face language barriers both in the court and in prison, as also lack of resources to make phone calls to connect with family or to access a translator in court, said the report.

The various sections (section 240, 251, 279) of the Code Of Criminal Procedure 1973, (CrPC) require that a charge or evidence be explained to the accused in a language known to the accused. Although the CrPC requires that case circumstances be explained, it does not necessarily get followed, impacting migrants from other states.

There are a lot of gaps in ensuring fair trial to migrants, said Sugandha Shankar, Senior Programme Officer in the Prison Reforms Programme at CHRI and one of the authors of the Karnataka prisons report. “The language barrier also jeopardises the cause of justice for indigent non-Kannada speaking inmates, who are not able to communicate with local lawyers about their case,” she said.

Court directions on bail bond

In July 2022, the Supreme Court noted that, despite multiple judgments and directions by the court over decades, Indian jails were "flooded" with undertrial prisoners. The Supreme Court has been concerned about the bail provisions and the incarcerated prison population in India. It directed the Union government to consider a bail act.

In a January 31, 2023 order, the Supreme Court issued seven directions to avoid delay in release of prisoners after getting bail. One of these said that if the delay is due to the insistence upon local surety, it is “suggested that in such cases, the courts may not impose the condition of local surety”.

However, magistrates do not use their discretion judiciously, and continue to mechanically fix bail amounts without considering the capacity of the accused to fulfil the same, said a CHRI explainer on bail. It added that the CrPC is ambiguous on bail, because release on bail or bond is based on various provisions. There is a tendency for courts to “insist on monetary security with surety where only release on bail is provided for under the Code, without using the option of releasing an indigent accused on personal bond”.

In some cases in Karnataka, Shankar of CHRI said that there were inmates who were unable to seek release as they had been granted bail on the condition of providing more than one surety. “When it is hard enough to find one surety, obtaining ‘double’ surety is an insurmountable challenge and perhaps an impossible feat.”

Migrants are likely to spend more time incarcerated due to the time taken to trace and contact families, inform them of the documentation required for release, and then for the family to obtain the documents and come to the district for compliance, said Sakhrani. “So some of them prefer to plead guilty in order to bring closure to their cases and get an early release, despite having bail orders,” she said.

Even when they manage to get bail, their travails don’t end because they are expected to attend hearings related to their case--which becomes difficult because for a migrant, travel is both expensive as well as time-consuming, and will mean the loss of time available to work and earn money. Sohan said that he was willing to travel when the court asked, despite poverty and physical disability. “We are filing an application for personal exemption due to his financial conditions,” said Jha, Sohan’s lawyer.

Need for cadre of social workers to follow up

While the Supreme Court's directions for bail bonds are much needed and the government initiative to support poor prisoners is significant, experts say there is no clarity yet about how the government will implement it.

With regard to migrants, it would be useful to consider a cadre of social workers who can regularly interact with undertrials in jail, identify those who need help, follow up with lawyers and coordinate with their families through home visits.

“Even if the government creates a bail fund as announced during the budget, we need people to implement and access it,” said Raghavan of Prayas. “Based on our work at Prayas, we know that a dedicated group of social workers can help in releasing more prisoners. The existing jail administration does not have the time or resources to do this work.”

Sakhrani felt that in addition to a cadre of social workers, the judiciary also needs to be sensitised about issues specific to migrants, and may consider using the probation system to follow up even upon release on bail, and not after only conviction.

Shankar of CHRI suggested that court translators be appointed to regularly communicate with undertrials regarding the status and progress of their case--which has been recommended in the Karnataka prisons report. Similarly, NALSA Standard Operating Procedure On Access To Legal Aid Services To Prisoners And Functioning Of The Prison Legal Aid Clinics, 2022 mentions that “the trial court shall request the District and Sessions Judge for an interpreter to be present in all the hearings, and during communications with the lawyer, to ensure that the right of self-defense is fully exercised by the accused”. The NALSA grant may be used in such cases.

* Name has been changed to protect his identity

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