Need to look into status of undertrials

The avowed purpose of a criminal justice system is to deliver efficient and speedy justice to the citizens of the country. It is ironical that this very system has been unjust to a large number of under trials in this country.

As per reports of the National Crime Record Bureau (NCRB), more than two thirds of those languishing in our prisons are under trials. More than 2.75 lakh undertrials are rotting in Indian prisons even though their guilt is yet to be proved.

Shailesh Gandhi, former Chief Information Commissioner, says that India is amongst the worst 10 nations in the world in terms of number of undertrials languishing in jails. According to the NCRB data, the worst states in this regard are Goa, Jammu & Kashmir, Gujarat and Punjab with over 75% undertrials. On the other hand, Kerala and Tripura have only 35 and 32% undertrials respectively.

It is now universally accepted that a person should be deemed innocent until proved guilty. Hence, keeping people whose guilt is not proved in prison is a gross violation of human rights.

The purpose of keeping the undertrials in custody is to prevent them from being in a position of influencing and inducing witnesses. But ironically, the present bail system allows the rich and powerful who are capable of wielding such influence to remain outside but keeps the poor and helpless in prison as they are unable to pay the bail amount.

A classic example is that of actor Salman Khan. In spite of the fact that he has been convicted thrice (the chinkara case, the black bucks case and the hit and run case), and the combined sentence adds up to 11 years, he has been in jail only for six days. His case is not an exception but is representative of a common trend. All of us know of many such cases where those with the money and power have succeeded in avoiding imprisonment indefinitely.

While the poor languish in jail for years without even being convicted, those who can pay the bail amount and engage efficient and reputed lawyers, avoid the prison even after being convicted because the law provides for keeping the jail sentence suspended when the convict goes on appeal to the higher court. This leads one to the inference that our judicial system is outmoded and out of synchrony with the fundamental tenets of justice. It is biased against the poor. 

Sometime ago, the Supreme Court itself had acknowledged that the “Law has become an instrument of injustice for the poor”.

Though pending cases have reached an unmanageable level, serious efforts to contain them are found lacking. The poor are made to suffer because of the incompetence of the system to dispose of cases expeditiously. The undertrial prisoner loses his means of livelihood, gets cut off from the family, his children are deprived of education and proper upbringing, and hence are likely to go astray. The whole family has to live with social stigma forever.

Habitual offenders

The injustice of keeping large number of undertrials in jail will be obvious when we realise that only a small percentage of them will be ultimately convicted. For example, the percentage of undertrials who were ultimately convicted in 2014 was only 45% (it was 40.2% in 2013 and 38.5% in 2012) according to the NCRB.

Many experts have suggested that instead of relying solely on payment of bail amount for granting bail, courts should consider factors like the nature of offence, past record, length of residence of accused in the community, his family ties and such other factors which would deter him from fleeing. Though undertrials are supposed to be in judicial custody, in practice they are lodged in the same prison as the convicts.

The Prison Reforms Committee set up under Justice A N Mulla in 1980 observed: “The undertrials cannot be put on the same footing as convicts.  The former are hauled up for suspected violation of law, yet they are innocent, till proved guilty. If they are allowed to mix up with hardened and habitual offenders, it would not be good for them and also for the society. Separate jails or barracks for undertrials are essential to contain ‘criminal contagion”.

The Mulla committee has also suggested releasing undertrials if they have already served half the period of imprisonment for which they are liable if the offence is proved. Various courts ruled later that when a person is in jail for a period longer than the sentence he is liable for the offence for which he is charged, then he should be released. But jail authorities lament that they do not have the infrastructure for proper data management and monitoring to implement such reform measures.

Separate institutions for undertrials, rehabilitation centres for those who are charged with petty offences, setting up of a bail fund to help those who are not able to mobilise the bail amount (as suggested by Amnesty International) are some measures which need to be considered urgently.