Over 3,000 of the 2.8 lakh have been behind bars for more than five years

Two of every three persons incarcerated in India have not yet been convicted of any crime, and Muslims are over-represented among such undertrials, new official data show.

Despite repeated Supreme Court orders on the rights of undertrials, the jails are filling ever faster with them, shows Prisons Statistics for 2013 released by the National Crime Records Bureau. The number of convicts grew by 1.4 per cent from 2012 to 2013, but the number of undertrials shot up by 9.3 per cent during the period.

Men make up 96 per cent of all prison inmates. Nearly 2,000 children of women inmates live behind bars, 80 per cent of those women being undertrials.

A sharp increase in the number of undertrials charged with crimes against women contributes to the rise in the number of all undertrials. The number of those incarcerated on charges of rape rose by over 30 per cent from 2012 to 2013, and the number facing charges of molestation grew by over 50 per cent. The number of men convicted of rape rose dramatically too, by 16 per cent — the biggest increase among major sections of the Indian Penal Code.

Undertrials are younger than convicts — nearly half are under the age of 30 and over 70 per cent have not completed school. Muslims form 21 per cent of them. On the other hand, 17 per cent of those convicted are Muslims.

“These numbers definitely point to a failure of the delivery of justice, but it also appears that the system is unequally unjust,” said Harsh Mander, Director of the Centre for Equity Studies, which works on issues of access to justice in prisons. “The disproportionate presence of members of the Scheduled Castes and Scheduled Tribes and Muslims among undertrials points not simply to a technical breakdown but also to the increased vulnerability of these groups, and probably bias,” Mr. Mander told The Hindu.

Among the 2.8 lakh undertrials, over 3,000 have been behind bars for over five years. Between them, Uttar Pradesh and Bihar are home to 1,500 of those undertrials. Most undertrials — 60 per cent of them — have, however, been behind bars for less than six months.

While most States have a little over twice as many undertrials as convicts, Bihar has a staggering six times as many.

The NCRB numbers also provide the only insight available into the number of people on death row; at the end of 2013, 382 persons had been sentenced to death and were awaiting either legal relief or the execution of sentence.

"Excessive pre-trial detention violates undertrial prisoners’ rights to liberty and fair trial, and adversely impacts their life and livelihood," Divya Iyer, Research Manager at Amnesty International India, said, adding that the new numbers were a "serious concern". While a lack of effective management of information relating to prisoners, the absence of functional and effective undertrial review committees, lack of adequate legal aid, and delays in court productions of undertrials contributed to the problem, the authorities must as a first step identify and release all those prisoners who are eligible for release under law, including those who have already been in prison for over half the term they would have faced if convicted, Ms. Iyer said.