By Dr Swati Jindal Garg
Union Home Minister Amit Shah’s recent statement has generated a ray of hope for all undertrials who have been languishing in jails for years. He said: “Before Constitution Day, we want to make sure there isn’t a single prisoner in the jails of India who has spent one third of his sentence in prison and still hasn’t received justice.” He added: “We have put in place 60 provisions for the court, the prosecution and police to complete their work within a time limit. We have also made provision for jails so that if a trial is not going on after a certain period, then—except for non-serious crimes—the jail officer will have to present the bail process inside the court.”
Shah made the statement at the 50th All India Police Science Conference. He also said that a lot of work had already gone into make the police accountable and a lot has been done to give strength to the police. This decision taken by the centre goes a long way in proving its commitment towards speedy trial as justice delayed is justice denied.
According to the National Crime Records Bureau, the number of undertrials in jails in India has risen constantly over the last 10 years—peaking in 2021. In 2020, about 76 percent of all prison inmates in the country were undertrials out of which about 68 percent were either illiterate or school dropouts, having about 27 percent of all undertrials who were illiterate and 41 percent who had dropped out before Class X. Statistics further show that Delhi and Jammu and Kashmir were found to have the highest ratio of undertrials in jails at 91 percent followed by Bihar and Punjab at 85 percent and Odisha at 83 percent.
While there is no denying the fact that justice delayed is justice denied, we also cannot forget that justice hurried is justice buried. The only way to deal with this dichotomy is to ensure that every undertrial gets a fair opportunity to defend himself and that too well within time so that no one languishes inside the jails just waiting to be heard. The fact remains that there are thousands of poor and resourceless undertrials who continue to be disproportionately arrested and routinely remanded to judicial custody in prisons. These undertrials are unable to seek and secure bail either because of lack of economic resources or due to the fear of the social stigma that they will face outside. Many a time, the family of the prisoner is forced into poverty with children going astray due to them being ostracised from the mainstream while the women are forced into prostitution. The family, due to the social stigma and social exclusion that it faces is often led into circumstances that propel it towards delinquency and exploitation by others. The privileged classes too, often take advantage of this situation in order to exploit the remaining family members of those who are incarcerated to the fullest possible extent.
On the flip side, while the outside world scares them, even the space inside the prison is a dangerous place for those it holds. Group violence is also endemic and riots are common within these so called “protected four walls”. Physical mishandling and sexual crimes are rampant and extra-judicial torture by jail officials are usually common in Indian jails. Insufficient accountability on the part of the authorities ensures that no unauthorised conduct of the prison authority is ever criminalized, making it act in negligence which could and does result in the death of inmates.
Physical safety apart, even the health of the inmates is at stake as most of the prisons face problems of overcrowding and shortage of adequate space to lodge prisoners in safe and healthy conditions. Prisoners are often cramped in with each other in such unhealthy conditions that infectious and communicable diseases spread easily.
Constitutionally, the right to speedy trial coupled with the right to free legal aid or free legal service is an essential fundamental right guaranteed by the Constitution under Article 21 which says: “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
The “Prisons/persons detained therein” is a state subject under Entry 4 of List II of the Seventh Schedule of the Constitution, and the administration and management of prisons is the responsibility of respective state governments. The Ministry of Home Affairs also provides regular guidance and advice to the states and Union Territories on various issues concerning prisons and prison inmates in order to ensure their protection. Article 39A of the Constitution also directs the State to ensure that the operation of the legal system promotes justice on the basis of equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Various endeavours have been made by the legislature as well as the courts to ensure that the innocent do not suffer for want of justice. The Supreme Court appointed Justice Amitava Roy (retd.) Committee has given the following recommendations for prisons reforms:
Further, the courts may also be encouraged to release offenders on probation at the pre-trial stage or after trial in deserving cases.
In 2017, the Law Commission of India had also recommended that undertrials who have completed a third of their maximum sentence for offences attracting up to seven years of imprisonment be released on bail. It cannot be denied that the undertrials are victims of multiple failings that start with inappropriate criminalization, followed by indiscriminate arrests, weak bail entitlements and inadequate summary disposals through Lok Adalats. The fact that most of these undertrials are from extremely humble backgrounds, adds to their misfortune.
The stance taken by the centre in the light of this background is a much awaited one. Today, the immediate need is for a holistic legislative reform that aims to expand the horizons of individual liberties. Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023—wherein it has been provided that “a first time offender (who has never been convicted of any offence in the past) shall be released on bail by the court if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law”—has addressed this problem to a large extent. The implementation of this, however, is still a huge task and would have to be done at a war footing in order to make even a slight dent in the huge backlog of incarcerated undertrials who have been languishing inside the jails—waiting to be heard.
Apart from this, the relevant provisions of the BNSS with regard to the time limit for police investigation in case of accused undertrial prisoners, must be strictly followed both by the police and courts. The practice for granting of automatic extension of remands must also be discontinued in order to stop this delay as most of these extensions are given merely for the sake of the convenience of the authorities which cannot be the sole ground in order to supersede the Constitutional guarantee provided under Article 21.
The emphasis today, should be on reducing the undertrial population by implementing the amended statutory provisions as well as the judicial decisions regarding the rights of undertrials, their arrests and the grant of bails.
Prisoners should be provided with better facilities than convicts keeping in mind that they have not as yet been proven guilty. Blackstone’s ratio states: “It is better that 10 guilty be set free rather than an innocent suffers”, and looking at the condition of the undertrials today, that appears to be the need of the hour.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi
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Union Home Minister Amit Shah’s recent statement has generated a ray of hope for all undertrials who have been languishing in jails for years. He said: “Before Constitution Day, we want to make sure there isn’t a single prisoner in the jails of India who has spent one third of his sentence in prison and still hasn’t received justice.” He added: “We have put in place 60 provisions for the court, the prosecution and police to complete their work within a time limit. We have also made provision for jails so that if a trial is not going on after a certain period, then—except for non-serious crimes—the jail officer will have to present the bail process inside the court.”
Shah made the statement at the 50th All India Police Science Conference. He also said that a lot of work had already gone into make the police accountable and a lot has been done to give strength to the police. This decision taken by the centre goes a long way in proving its commitment towards speedy trial as justice delayed is justice denied.
According to the National Crime Records Bureau, the number of undertrials in jails in India has risen constantly over the last 10 years—peaking in 2021. In 2020, about 76 percent of all prison inmates in the country were undertrials out of which about 68 percent were either illiterate or school dropouts, having about 27 percent of all undertrials who were illiterate and 41 percent who had dropped out before Class X. Statistics further show that Delhi and Jammu and Kashmir were found to have the highest ratio of undertrials in jails at 91 percent followed by Bihar and Punjab at 85 percent and Odisha at 83 percent.
While there is no denying the fact that justice delayed is justice denied, we also cannot forget that justice hurried is justice buried. The only way to deal with this dichotomy is to ensure that every undertrial gets a fair opportunity to defend himself and that too well within time so that no one languishes inside the jails just waiting to be heard. The fact remains that there are thousands of poor and resourceless undertrials who continue to be disproportionately arrested and routinely remanded to judicial custody in prisons. These undertrials are unable to seek and secure bail either because of lack of economic resources or due to the fear of the social stigma that they will face outside. Many a time, the family of the prisoner is forced into poverty with children going astray due to them being ostracised from the mainstream while the women are forced into prostitution. The family, due to the social stigma and social exclusion that it faces is often led into circumstances that propel it towards delinquency and exploitation by others. The privileged classes too, often take advantage of this situation in order to exploit the remaining family members of those who are incarcerated to the fullest possible extent.
On the flip side, while the outside world scares them, even the space inside the prison is a dangerous place for those it holds. Group violence is also endemic and riots are common within these so called “protected four walls”. Physical mishandling and sexual crimes are rampant and extra-judicial torture by jail officials are usually common in Indian jails. Insufficient accountability on the part of the authorities ensures that no unauthorised conduct of the prison authority is ever criminalized, making it act in negligence which could and does result in the death of inmates.
Physical safety apart, even the health of the inmates is at stake as most of the prisons face problems of overcrowding and shortage of adequate space to lodge prisoners in safe and healthy conditions. Prisoners are often cramped in with each other in such unhealthy conditions that infectious and communicable diseases spread easily.
Constitutionally, the right to speedy trial coupled with the right to free legal aid or free legal service is an essential fundamental right guaranteed by the Constitution under Article 21 which says: “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
The “Prisons/persons detained therein” is a state subject under Entry 4 of List II of the Seventh Schedule of the Constitution, and the administration and management of prisons is the responsibility of respective state governments. The Ministry of Home Affairs also provides regular guidance and advice to the states and Union Territories on various issues concerning prisons and prison inmates in order to ensure their protection. Article 39A of the Constitution also directs the State to ensure that the operation of the legal system promotes justice on the basis of equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Various endeavours have been made by the legislature as well as the courts to ensure that the innocent do not suffer for want of justice. The Supreme Court appointed Justice Amitava Roy (retd.) Committee has given the following recommendations for prisons reforms:
- Speedy Trial: Speedy trial remains one of the best ways to remedy the unwarranted phenomenon of overcrowding.
- Lawyer to prisoner ratio: There should be at least one lawyer for every 30 prisoners, which is not the case at present.
- Special Courts: Special fast-track courts should be set up to deal exclusively with petty offences which have been pending for more than five years.
- Further, accused persons who are charged with petty offences and those granted bail, but who are unable to arrange surety should be released on a Personal Recognizance Bond.
- Avoid Adjournment: An adjournment should not be granted in cases where witnesses are present, and the concept of plea bargaining, in which the accused admits guilt for a lesser sentence, should be promoted.
- Accommodative Transition: Every new prisoner should be allowed a free phone call a day to his family members to see him through his first week in jail.
- Legal Aid: Providing effective legal aid to prisoners and taking steps to provide vocational skills and education to prisoners.
- Use of ICT: Use of video-conferencing for trial.
- Alternatives: The courts may be asked to use their “discretionary powers” and award sentences like “fine and admonition” if possible, instead of sending the offenders to jails.
Further, the courts may also be encouraged to release offenders on probation at the pre-trial stage or after trial in deserving cases.
In 2017, the Law Commission of India had also recommended that undertrials who have completed a third of their maximum sentence for offences attracting up to seven years of imprisonment be released on bail. It cannot be denied that the undertrials are victims of multiple failings that start with inappropriate criminalization, followed by indiscriminate arrests, weak bail entitlements and inadequate summary disposals through Lok Adalats. The fact that most of these undertrials are from extremely humble backgrounds, adds to their misfortune.
The stance taken by the centre in the light of this background is a much awaited one. Today, the immediate need is for a holistic legislative reform that aims to expand the horizons of individual liberties. Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023—wherein it has been provided that “a first time offender (who has never been convicted of any offence in the past) shall be released on bail by the court if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law”—has addressed this problem to a large extent. The implementation of this, however, is still a huge task and would have to be done at a war footing in order to make even a slight dent in the huge backlog of incarcerated undertrials who have been languishing inside the jails—waiting to be heard.
Apart from this, the relevant provisions of the BNSS with regard to the time limit for police investigation in case of accused undertrial prisoners, must be strictly followed both by the police and courts. The practice for granting of automatic extension of remands must also be discontinued in order to stop this delay as most of these extensions are given merely for the sake of the convenience of the authorities which cannot be the sole ground in order to supersede the Constitutional guarantee provided under Article 21.
The emphasis today, should be on reducing the undertrial population by implementing the amended statutory provisions as well as the judicial decisions regarding the rights of undertrials, their arrests and the grant of bails.
Prisoners should be provided with better facilities than convicts keeping in mind that they have not as yet been proven guilty. Blackstone’s ratio states: “It is better that 10 guilty be set free rather than an innocent suffers”, and looking at the condition of the undertrials today, that appears to be the need of the hour.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi
The post appeared first on .