Rotting without bail

The real solution to the problem does not merely lie in their early release on bail but in expediting the trial process.

The bail is rule and the jail an exception. This saying may be true in theoretical parlance but not in the real sense. Those who are affluent and have both money and muscle power can afford bail easily, whereas the weak, poor and vulnerable rot in over-crowed jails without bail for long.

In the high profile Mumbai hit-and-run case, film star Salman Khan got the interim bail within two hours from the Bombay High Court after his conviction by the sessions court which was extended after two days till June 2015. He didn’t spend even an hour in jail and straightaway went home. 

In the same way, the Satyam case convict, Ramalinga Raju was able to secure bail soon after his conviction.  Many top politicians from Bihar, Uttar Pradesh and Tamil Nadu too fall in the same category. All these instances strengthen the public perception that our judicial system is pro-rich and against the poor, to say the least.

Jail and not bail still continues to be the norm in respect of the poor. Needless to say that more than 2,78,000 (about 67 per cent), or a little over two-third of the total prison population, are undertrial prisoners. There are many reasons for the gross and inordinate delay in the cases of their release from detention. Most of them are too poor to afford bail bonds and furnish sureties for getting bailed out, although poverty is not a ground for incarcerating a person, as per the Supreme Court’s observations in a recent case.

Many of the cases involving undertrials are compoundable, and yet many of the people are imprisoned without the benefit of compounding being extended to them. Even the amended provision of the Code of Criminal Procedure Section 436A – which entitles those undertrial prisoners who have completed half of their likely jail term to bail on personal bond - could not be of much help to them for lack of its enforcement. As a result, jails are getting more and more overcrowded across the country.

In our country’s 1,394 jails, the total number of inmates is 3,85,135 against the sanctioned capacity of 3,43,169 prisoners. The influx of new inmates further makes the problem worse. At the same time, overcrowding has its adverse effects. Housing petty offenders with hardened criminals due to space constraints can even turn them into hardened criminals in a short span. 

Many gangsters recruit members of their criminal gangs out of these redeemable offenders. Overcrowding hampers efforts to check the inflow of drugs inside jails, maintain discipline, prevent violence and provide food, clothing and healthcare to inmates. 

Suicides in despair, deaths due to overdose of drugs, personal fights among rival  gangs and jail-breaks, are all too common and frequent and prison staff is helpless to check such horrendous happenings.

While hearing more than two-decade old petition on prisoners’ rights, Supreme Court judge Justice T S Thakur expressed anguish at the loss of human rights and liberty suffered by an undertrial prisoner. “No civilised country should torture its citizens. The true character of a democracy is adherence to the due process of law”, observed the judge.

In a recent memorial lecture, he also stated, “Law does not permit or tolerate inhuman treatment to suspects, undertrials, or even convicts. The legal position is well known. Despite that, nothing is happening. Is it a case of failure of the government or the judiciary? In fact, this is not only a human rights issue for those lodged behind bars, but also a matter of great concern for our judicial system itself,” he lamented.

Worsening plight

In September, last year, the Supreme Court took the Centre and state governments to task over the worsening plight of undertrial prisoners, particularly those belonging to the under-privileged sections of the society while hearing a PIL petition.

The court took a serious note of the acute problem of such prisoners languishing in jails for years due to unconscionable delay in their trials and asked the Centre to file a status report specifying their number. It also set a deadline of two months, starting October 1, 2014, to free all undertrials who have completed half of the maximum sentence prescribed for the offences they have been charged.

In another directive, the apex court has further reiterated that an undertrial review committee, comprising the district judge, district magistrate and superintendent of police, should be set up in each district. The onus of constituting such a district-wise panel has been put on the National Legal Services Authority, acting in accordance with the State-Legal Services Authority.  

It has also asked the sessions judges and judicial magistrates to start visiting prisons in their jurisdictions to identify and release long-jailed undertrial prisoners. It is not clear why all these measures have not yielded desired results.  One reason could be that there is inadequate legal aid and advice available to poor undertrials.

The legal service authorities in various states must play a principal roll in spreading awareness among  prisoners about their rights especially provisions which entitle them to freedom. It is also in the interest of the government that prisons are not over-crowded, considering the cost of prison space, resources and maintenance. 

The real solution of the problem does not lie merely in their early release on bail but in expediting the trial process.  The fact that cases are not decided for long spells, close to the likely period of imprisonment, is a poor commentary on a system beset by delay. The sooner this is addressed, the better it is for the administration of criminal justice.