In 1996, when a Delhi Police team bundled him into a car in Kathmandu, Nepal, Mohammad Ali Bhat was just 25. Bhat, who hailed from Kashmir, was working as a shawl trader in the Nepalese capital. From there, he was taken to Delhi, made an accused in the Lajpat Nagar blast case, and later taken to Rajasthan and named as an accused in the Samlethi blast case. This ensured that he spent years in jails in Delhi and Rajasthan.

On July 22 this year, the Rajasthan High Court declared Bhat to be innocent. Found "not guilty" at 48, Bhat has lost 23 prime years of his life to prison due to India's lethargic justice delivery system.

In another case, a lower court in Delhi in 2010 concluded that Mohammad Maqbool Shah was innocent. By then, he had languished in jail for 14 years. Like Bhat, Shah too was arrested in 1996 as an accused in the Lajpat Nagar blast case.

He was arrested as a teenager, spent 14 years in jail, and at the age of 29, was told that he was actually innocent. When he returned home in Kashmir, he found out that his father and sister were dead.

"If this justice was delivered at the right time, my career would not have been ruined. My home is destroyed. My father and my sister are dead," he was quoted as saying by NDTV.

In 2017, police in Bijnor, Uttar Pradesh, found that for 10 years, they had imprisoned a man for a murder he never committed. The murder was committed by his brother who was at large. The cops arrested Bala Singh, even though his mother, a daily-wage labourer, pleaded that the police were mistaking Bala for her other son. When he was set free, he told reporters he had only one wish: the official who arrested him should be punished.

HOW COMMON IS THIS?

What's common in the stories of Bhat, Shah and Singh is that they were all arrested by police; accused of crime(s); and languished in jails for years before they were judged innocent.

But are these exceptions?

Statistics on Indian prisons reveal that 68 per cent of prisoners in India are those who have not been convicted by any court for a crime. Many among them have to wait for years before the trial court even begins hearing their cases.

Analysis of the latest reports of the National Crime Records Bureau (NCRB) shows that jails in India are mostly flooded with young men and women who are illiterate or semi-literate and come from socio-economically weaker sections of society. More than 65 per cent of undertrial prisoners belong to the SC, ST and OBC categories. Most of them are too poor to even afford the bail fee.

This isn't new. Indian jails have a history of such cases. Making a scathing observation 40 years ago, the Supreme Court had said the high prevalence of undertrials in jails is a "crying shame on the judicial system" as it permits imprisonment of people for long periods even without trial commencing in many cases.

Terming such prisoners as "unfortunate forgotten specimens of humanity", the Supreme Court had said it was "high time" the government and judiciary began to realise that "in the dark cells of our prisons there are large number of men and women who are waiting patiently, impatiently perhaps, but in vain for justice".

The court said for these people law has become an "instrument of injustice" and they are the helpless victims of the "callousness of the legal and judicial system".

YEARS CHANGED, BUT INDIAN JAILS DIDN'T

Much has changed in the last 40 years but the plight of undertrials in Indian jails has only worsened as their number continues to swell.

In 1978, 54 per cent of India's inmate population consisted of undertrials. By 2017, this figure rose to 68 per cent. What has also not changed is the socio-economic profile of undertrial prisoners - a majority of them continue to be young, barely literate and poor.

This perpetuating ignominious situation is reflected in the latest report of the National Crime Records Bureau (NCRB) which shows that by the end of 2017, at least 3.08 lakh people were lodged in Indian jails even though they had not been held guilty by any court. This figure was much more than the number of convicts in India.

This high number of undertrial prisoners comes as a paradox as the Indian judicial system claims to work on the principle that a person is presumed to be innocent until proven guilty. And, even the Supreme Court has held that bail to an undertrial prisoner is a right.

The NCRB report shows that 70 per cent of undertrial prisoners in India are illiterate and semi-literate, indicating that that they belong to economically backward sections of society. The NCRB report also shows that 48 per cent of undertrials fall in the age group of 18-30 years.

In the past, the Law Commission of India in multiple reports outlined that most undertrial prisoners in India are so poor that they can't even afford to pay the money required to secure bail.

In its 268th report the Law Commission had said it has become a norm in India that the "powerful, rich and influential obtain bail promptly and with ease, whereas the masses/the common/the poor languish in jails". It said this prevalence puts "human dignity at stake".

Illiteracy, youth and socio-economic backwardness are thus the defining characteristics of an average Indian prisoner.

MONEY, NOT CRIME DECIDES PERIOD IN JAIL

A direct consequence of most undertrials being economically backward is that the period they spend inside jails is not determined by the crime they are accused of having committed, but by their ability, or the lack of it, to pay the bail fee or avail a good lawyer.

The double whammy of being poor and barely literate means that most prisoners in India hardly know and understand the legal mechanism to exercise their fundamental right to a speedy trial and freedom from undue detention.

The end result of this is people (mostly young) languishing in jails for years, waiting for that one day when a court will hear their case. Many a time, this first hearing in the case is listed after years of incarceration.

For example, as on November 14, 2019, there were 18,46,741 criminal cases that were pending for more than 10 years in various lower courts in India. Add to this 2,45,657 criminal cases that were pending for more than 10 years in various high courts.

Way back in 1979, the Supreme Court has observed that some of the undertrial prisoners have been in jail for 5-10 years and some even more, without their trial even having begun.

The court had wondered if there is any hope for these "lost souls" in a judicial system that for years denies them even a trial and "keeps them behind bars, not because they are guilty, but because they are too poor to afford bail and the courts have no time to try them".

In Hussainara Khatoon versus Home Secretary, State of Bihar, the Supreme Court had observed that undertrial prisoners languish in jail "because they (are) downtrodden and poor, and not because they are guilty".

BUT WHO'S RESPONSIBLE?

There is no pin-pointed answer to the problem which lies in the structure and functioning of the entire justice delivery system, right from the police to the courts and jails. The system somehow lacks accountability for miscarriage of justice which leaves the victims in the lurch.

Countries like the US, the UK and Germany have enacted laws under which the State is made to compensate a person for miscarriage of justice.

In May this year, a court in the US announced a compensation of $1.5 million after it was found that a man was made to spend 46 years in jail for a murder he had not committed.

While courts in India have acknowledged the flaws in the system, for an innocent person who is set free by a court years after being lodged in a jail, the sense of justice perhaps remains elusive forever. In the eyes of society, the person (even though an undertrial) is no different than a convict once he spends years in a jail.

In Thana Singh versus Central Bureau of Narcotics, the Supreme Court itself had observed that for the prisoner, imprisonment as an undertrial is as dishonourable as imprisonment for being a convict because the "damning finger and opprobrious eyes of society draw no difference between the two".

The International Covenant on Civil and Political Rights (ICCPR) calls upon countries to enact laws to compensate people for miscarriage of justice. India ratified ICCPR in 1968 but is yet to comply with its obligations and enact a law that awards compensation to victims of miscarriage of justice.

In 2018, the Law Commission in its report on wrongful prosecution and legal remedies recommended enacting a legal provision that would provide relief to victims of wrongful prosecution in terms of monetary and non-monetary compensation (such as counselling, mental health services, vocational/employment skills development etc).

The report stressed, "There needs to be recompense for the years lost, for the social stigma, the mental, emotional and physical harassment, and for the expenses incurred etc."

The Commission's report is a step forward in the right direction. But it will be of little value unless implemented in letter and spirit.

Forty years ago the Supreme Court remarked that long incarceration of undertrials is a "crying shame on the judicial system". It remains the guiding principle to repair the system and fix accountability to bring a positive change.

The author tweets at @mukeshrawat705 and can also be reached out on Facebook.