Mumbai: In 2019, Mumbai’s Shivaji Nagar police station arrested a man in a case of child sexual abuse. On arrest, he was taken into custody in another case registered earlier. Once he was sent to Taloja central prison in Navi Mumbai, for over four years, the man was never taken out of the jail, even for his regular court dates.
Suddenly, at the end of 2024, he was produced before the court and told that the trial court will be recording his statement under section 313 of the CrPC, almost a final stage of the trial, where the accused person’s statement is recorded. Unaware of any development in the case, the man was left confused.
Human rights activist Surendra Gadling and cultural activist Sagar Gorkhe, with the help of others arrested in the Elgar Parishad case have identified at least 300 such cases where incarcerated persons lodged at the Taloja central prison have not been produced before the court for years at end.
With the systematically conducted survey over the past many months, both Gadling and Gorkhe have moved the Bombay high court seeking direction to ensure regular court visits for those in judicial custody. Since both have been facing prolonged incarceration themselves, the petition was posted across to the high court’s registry late last month.
Many prisoners had not been produced in court even once in two to three years
The data collected by the activists reveal disturbing trends: many prisoners had not been produced in court even once in two to three years, and some had only been produced a handful of times in five years. These figures highlight the gravity of the situation, where the basic legal right to a timely trial is being routinely violated.
In the past seven years, since the activists were arrested in the Elgar Parishad case, there have been several sit- in protests, petitions to the courts and media about the mismanagement that has been continuing in the prisons of Maharashtra, more particularly at Taloja prisons. Just to ensure they are produced before the court for regular hearings, the activists have had to even go on hunger strike.
Over time, the prison officials and the Navi Mumbai district police, under whom the reserve police guards’ function, have ensured that the activists are taken to court on most dates, the authorities have ignored the larger problem that impact almost all of the 2,500 incarcerated persons lodged at the Taloja central prisons.
In the petition, Gadling and Gorkhe have challenged the Maharashtra Home Department, Navi Mumbai Police, reserved police forces, Taloja Jail authorities, and the ADGP Prisons for their systemic disregard for prisoners’ constitutional rights, especially their right to a fair trial and timely court appearances.
This well- researched petition, along with the many interviews, is based on both the government orders (GOs) issued from time to time and the prison authorities’ response to the prisoners’ demands. Prison authorities have cited the “dearth of manpower” as the primary reason behind the failure to produce prisoners before courts, a justification which the petitioners assert is “completely frivolous and constitutionally unsustainable.”
Majority of incarcerated persons come from marginalised communities
Such actions, they point out in the petition, violate not only the provisions of the Criminal Procedure Code (CrPC) but also the fundamental rights enshrined in the Indian Constitution, as well as several GOs and orders issued by the high court and the Supreme Court.
As against the actual capacity of 2,124 prisoners, Taloja prison is invariably overcrowded. At present, close to 2,600 prisoners are lodged at Taloja Jail, facing trial across the nine courts located in Mumbai – Raigad, Thane, Palghar, Kalyan, Bhivandi, Vashi, Panvel, Alibaug, and Dindoshi.
The majority of these incarcerated persons, the petitions point out, come from marginalised communities such as Dalits, Adivasis, and religious minorities. Many are migrants seeking employment, living in poverty, and serving as the primary breadwinners for their families.
Prolonged incarceration, ranging from a few days to over 14 years in some cases, has wreaked havoc on their families. The mental anguish and financial hardship inflicted upon their dependents are dire, and the lack of regular court appearances only exacerbates their misery. The problem of non- production can’t be only looked at purely as a legal issue but also deprivation of families that travel long distances to meet their family members.
Lawyers and human rights lawyers have long been pointing to this aspect that court production also provides an opportunity for prisoners to meet their family members in a slightly more relaxed environment. Relatives of prisoners, unsure whether the person will be produced before the court, travel from far distances with the hope of meeting them. However, they often have to return without having met.
The petition was drawn on the basis of the data gathered from Taloja central prisons because both Gadling and Gorkhe have been lodged at this jail. The condition, however, is not much different in other prisons of the state, Sumit, Gadling’s son, points out. Sumit is a practicing lawyer and has worked on the petition alongside his father. He recalled how one of his clients in his hometown Nagpur had to pay a huge bribe just to ensure the prisoner was taken to the court for the hearing.
Every district has to set aside a specific number of police guards just to ferry incarcerated persons to court, hospitals and in some cases to neighbouring jails. For example, the state government has issued two orders, in 2004 and 2011, sanctioning 239 guards to be reserved at the Kalamboli Police Headquarters to ferry incarcerated persons.
Failure of the video conferencing system
This reserved number is barely adequate but Gadling and Gorkhe’s research has found that even this stipulated number of guards are not deputed on court duty.
The prison officials have both officially and unofficially communicated that police escorts get diverted to make VIP security arrangements, festivals, and elections. These guards, according to the government orders, cannot be diverted for any other purpose but prison duty. The failure to comply with these resolutions, Gadling contends, is a direct violation of both legal and constitutional obligations.
As a practicing lawyer, Gadling is acutely aware of the challenges that arise when lawyers are unable to meet with their clients regularly. Prisoners are often deprived of the chance to consult with their legal representatives in person, which is crucial for preparing an effective defence. Even meetings through the “vakil mulaqat” system, which are limited to just 20 minutes under the strict supervision of jail staff, are insufficient for a meaningful discussion about the case, he points out in the petition.
Worse, the system of video conferencing (VC) used in lieu of physical appearances often fails due to poor internet connectivity, technical issues, and the presence of jail staff during the communication. The recording of VC sessions, a discreet yet a common practice across jails in the country, violates the privileged nature of lawyer-client communication, protected under the Indian Evidence Act, Section 126.
The petition stresses that video conferencing should “only be a supplement to, not a substitute for”, the physical production of prisoners in court. A fair trial requires that accused individuals be present in the courtroom, where they can communicate directly with their lawyers, give instructions, and consult on their defence.
Also Read: Elgar Parishad Prisoners’ Hunger Strike Marks a Momentous Victory for Prison Rights
When prisoners are not physically produced, they are denied the opportunity to prepare adequately for their defence, a denial that undermines their right to a fair trial as guaranteed under Article 21 of the Constitution.
The high court has previously directed the government to establish transparent glass chambers in courtrooms to enable confidential, uninterrupted communication between undertrial prisoners and their legal representatives. This directive has largely gone unheeded, the petition points out.
The petitioners have also shared their own experiences of interacting with the “judicial department” of Taloja Jail, where they were told that the judicial department regularly requests escorts for prisoners, but these requests are often ignored.
