Police in India (part V)

The fundamental right to liberty is violated by the state if a person is imprisoned without conviction. There is an oft-used euphemism for this kind of violation, and it is called "preventive detention".

Preventive Detention is supposedly a tool of feudal powers, or an extraordinary measure in times of war. Not so in India.

From The Hindu:

... the Preventive Detention Act was passed by Parliament in 1950. After the expiry of this Act in 1969, the Maintenance of Internal Security Act (MISA) was enacted in 1971, followed by its economic adjunct the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) in 1974 and the Terrorism and Disruptive Activities (Prevention) Act (TADA) in 1985. Though MISA and TADA have been repealed, COFEPOSA continues to be operative along with other similar laws such as the National Security Act (NSA) 1980, the Prevention of Blackmarketing and Maintenance of Essential Commodities Act 1980 and the draconian Prevention of Terrorism Act (POTA) 2002; not to mention laws with similar provisions enacted by the State governments.

From an article on the HRDC:

In the normal course of the criminal law, a person accused of a crime is guaranteed the rights to a legal counsel, to be informed of charges as soon as possible, to appear before a magistrate within 24 hours, to cross-examine any witnesses and question any evidence presented, and to be presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

The National Security Act, however, does not apply any of these rights to preventive detention cases. It permits the extra-judicial detention of individuals if the Government is subjectively “satisfied” that an individual is a threat to foreign relations, national security, India’s defence, state security, public order, or the maintenance of essential supplies and services.

Since the right to liberty does not exist in India, the article continues

The Supreme Court has consistently ruled that on their face, preventive detention measures such as those in the NSA are wholly constitutional.

The National Security Act of 1984 is still in effect in India. If you thought you cannot be imprisoned without due process in India, and that India is a free country, you are just factually wrong. India may have become a democracy in 1947, but it is certainly not a free country.

On the one hand, the crime statistics in India report to a crime incidence of 5% compared to a developed country like the US (in other words, that 95% of crimes in India are not subject to the rule of law). This is obviously a simplification, since violations of law are, if anything, much more frequent in India (for just one example, drunken driving, traffic and parking violations are flagrantly common in India). On the other hand, far more people are unjustly imprisoned in India for their alleged crimes than in any other country in the world.

From the Human Rights Watch report of 2009

The large scale of crime suppression is suggested by the unrealistically low rate of crime reported by the Indian government: in 2007, a total of 215,613 violent crimes were registered nationwide, or 19 crimes for every 100,000 residents in India. Bangladesh also suffers from under-registration, but has a higher rate of 83.21 reported crimes per 100,000 residents. In developed countries like Japan and the US, the rate is more than 1,000 reported crimes per 100,000 residents.

From The Hindu article above, which references the NHRC report of 2003

... as per the NHRC report released in May last year, out of a total of 3,04,893 prisoners in India, 2,25,817 are awaiting trial. In other words, more than 74 per cent of the total prison population are undertrials.

The latest report available by NHRC on their website is from 2008-2009. It indulges in a lot of chest-thumping for its own accomplishments, but does not mention the all-important statistic of the population imprisoned without conviction. But there are some hints. From the report

The District Jail in Jamui, Bihar had 629 undertrials and 28 convicts on the day of the visit...

That is, 95% of the prisoners in that prison were non-convicts. That might be true for one prison, but the mind boggles if that is true for the country as a whole.

I looked up the National Crime Records Bureau report on Prisons for 2009, available here, and found that the situation is slightly better than 2003, but still extremely alarming: Even in 2009, 67% of the prison population has not been convicted but is under trial. The total prison population in India is 370,000 (which is merely 0.03% of the total population of 1.2 billion, compared to 1% - 33 times higher - in the USA).

These are depressing figures, perhaps for India as well as for the US.

(to be continued)