Tribal Undertrials
In the first quarter of the 19th
century, the prison was a place for
the detention of the undertrials.
Unfortunately, even today, Indian
prisons are almost filled with
undertrial prisoners. Prison data
reveals that undertrial prisoners
constitute 65% of the total
prisoners in India, with a significant
increase in this percentage over
the years. Irfan Ahmad and Md
Zakaria Siddiqui, in an article in this
journal (EPW, 4 November 2017)
highlighted the over-represen-
tation of minorities in prison. More
explicitly, Adivasis, Dalits,
Christians, Muslims all are over-
represented in prisons when
compared to their total population.
The tribal population in India is
8.63% of the total population, but
comprises 11.33% of the total
prison population. Both Dalits and
tribals are over-represented in
undertrial populations.
Vijay Raghavan opines that
governments use prisons as an
instrument of social control, and
emphasises the need for quality
legal aid service to undertrials
(EPW, 23 January 2016). There is
much literature elaborating the
inability of certain sections of
society to negotiate within the
criminal justice system, especially
in terms of seeking bail. When the
court grants bail to an accused, the
issue of security in terms of
property arises. Thus, persons who
do not possess property face
difficulty in securing bail. The court
supposes that only fear of forfeiting
property ensures the availability of
the accused in the court. However,
compulsory surety for bail sends
the explicit message that justice is
more favourable to people who
possess property.
Further, why should property be
the only criterion of securing
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liberty? This is despite an
abundance of academic writing
explaining the exclusion of certain
sections from securing justice,
particularly bail, because of the
absence of property. However, the
tribal experiences of under-trial
imprisonment deserves careful and
immediate attention, because
tribals live in forestlands which are
not considered immovable property .
Extending this discourse to
Kerala, although the Kerala
development model has enabled
high social development, it has
been criticised for exclusion of
certain sections of society,
especially the tribal population.
Furthermore, a significant share of
the tribal population dwell in forests
and do not own property. The
struggle for land has been kindled
long ago and continues still. It was
in 2006 that the government
enacted the Scheduled Tribes and
Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act.
This act ascribes rights to forest-
dwelling tribes, entitling them to
hold a piece of forestland either for
self-cultivation or for any other
common occupation or habitation
so as to ensure their livelihood. The
important question here is whether
the title deed, issued as per
individual forestland, is considered
as immovable property. It is in this
context that the absence of land
and title over immovable property
is to be analysed.
From data on undertrial tribal
prisoners collected from the prison
department of Kerala through a
right to information inquiry, it is
learnt that there are 150 under-trial
tribal prisoners in different prisons
in Kerala. One of the important
concerns of the inquiry was
whether these prisoners are being
denied bail due to the absence of
a title deed for immovable property.
However, there exists a serious
limitation of data on the number of
tribal prisoners who have been
denied bail due to this parti-cular
reason. A majority of the prison
heads replied that the prison
department does not maintain any
such records and asserted that it
falls under the purview of
magistrate court.
However, very few prison heads
replied that there are tribal
persons, who are denied the bail
because of the absence of title
deed over immovable property.
More clearly, data from the district
jail in Manathavadi, Wayanadu
reveals that there are four tribal
persons who are denied bail
because they failed to submit the
surety. Data from the central
prison in Thrissur also uncovers six
more such cases. This does not
mean the remaining tribal prisoners
receive bail. My impression from
the prison remand files is that very
few do get bail, while a majority of
them continue as undertrial
prisoners until their verdict. A
careful and detailed analysis
reveals that the tribal category is
almost excluded from the justice
system, or they are not in a position
to negotiate with the criminal
justice system. I also want to add
that a majority of these undertrial
prisoners are charged under a
simple provision of the Abkari Act.
The remand files also reveal
that non-tribal prisoners facing
similar charges get bail relatively
easily. It is in this context that the
demand to change property as
criteria for securing liberty has
been raised.
Shahdab Perumal
Kozhikode
(Curtecy: EPW)
Class Struggle