An appeal for initiating action to set up a legal service authority to reach out to undertrials and secure access for them to legal assistance for enabling them to get justice
Smt Droupadi Murmu
President of India
Respected Rashtrapati Ji,
I had earlier addressed you vide my letter dated 25-7-2022 (which can also be readily accessed at https://countercurrents.org/2022/07/president-should-play-a-proactive-role-for-tribals/), appealing to you to invoke your authority under Article 244 of the Constitution and intervene in the matter of safeguarding the adivasis’ interests, in so far as the areas notified under the Fifth Schedule are concerned, and ensure strict compliance with the provisions of the Fifth Schedule and the laws enacted thereunder.
I am now taking the liberty of seeking your further intervention in another important matter concerning the lives of a large number of SCs/STs/OBCs languishing in jails as “undertrials” across the country, so as to enable them to secure access to competent legal aid, to be able to get speedy justice and freedom from undue detention.
As on 31-12-2021, out of 5,54,034 jail inmates in the country, 4,27,165 (77%) are “undertrials“. Among them, 90,037(21%) belong to the SCs, 42,211 (10%) belong to the STs and 1,51,267 (35%) belong to the OBCs. Among the STs, 21,672 undertrials (out of 42,211 or over 51%) are from those States, which have vast areas notified under the Fifth Schedule. “Undertrials” is a euphemism used to describe all those whose freedom has been curtailed, without their offences being proved beyond doubt.
Article 244, read with the Fifth Schedule, places a special responsibility on the high offices of the President and the State Governors to exercise direct oversight on administration in the Scheduled Areas and, from that point of view, the fact that large numbers of adivasis stand detained for years in jails without a trial should cause a serious concern.
Irrespective of whether an undertrial is an adivasi or not, he or she is entitled to be governed by the two inviolable principles of natural justice, namely, “a person accused of a crime is considered innocent until proven guilty” and “the burden of the proof lies upon him who affirms, not he who denies”. Article 21 of the Constitution guarantees the fundamental right, the “right to life” to a citizen. I may also point out in this connection that India is a signatory to the Universal Declaration of Human Rights (UDHR). Article 9 of the UDHR reads as follows.
“No one shall be subjected to arbitrary arrest, detention or exile”
While the Constitution does envisage fundamental rights to be subject to “reasonable” restrictions, such restrictions, by no stretch of imagination, give license to the executive to imprison citizens for unduly long periods, without giving them an opportunity at the earliest to have the benefit of a trial by an appropriate judicial authority. They cannot be left to the mercy of the investigating agencies, who too, in the normal course, ought to be subject to judicial oversight to ensure that investigative work is completed in the shortest possible time, so as to make sure that an innocent citizen’s liberty is not unduly curtailed.
In the case of most undertrials, had the investigating agencies completed investigation on time and had those undertrials been given access to the necessary legal counsel, those detained would have established their innocence early and regained their freedom that the Constitution guarantees. Almost all those undertrials who belong to the weaker sections of the society have no adequate means to secure access to legal assistance to be able to prove their innocence. Even in the case of those undertrials who stand accused of committing petty offences, perhaps it is the society that has subjected them to repression and forced them to commit petty offences.
Undue detention of persons belonging to the SCs/STs/OBCs disrupts their lives permanently, deprives their families of their livelihoods and excludes their children from access to educational opportunities.
I appeal to you, Rashtrapatiji, to invoke your authority under the Constitution to direct the executive to institute a competent mechanism to reach out to each and every adivasi undertrial in the country and provide them necessary legal counsel and assistance to enable them to secure freedom at the earliest.
Similarly, in the case of all those undertrials belonging to the other weaker sections also, it is imperative that a similar mechanism is put in place to reach out to them and provide legal assistance to enable them to come out of detention without a day’s delay.
I write this letter on the 153rd anniversary of the birth of Gandhiji. His words, “freedom is never dear at any price. It is the breath of life. What would a man not pay for living?” have far more relevance today than ever.
May I appeal to you, Rashtrapatiji, to commemorate this day to intervene decisively and ask the government to do everything to enable each and every undertrial, especially those belonging to the SCs/STs/OBCs, to secure access to freedom without any delay?
E A S Sarma, Former Secretary to Government of India & Former Commissioner (Tribal Welfare), erstwhile Andhra Pradesh Government, Visakhapatnam