TRAILS OF UNDERTRIALS: WHY ARE SO MANY IN JAIL?

Justice delayed is Justice denied

-William E. Gladstone

INTRODUCTION

In Jharkhand, Visheshwar Oraon has been in jail for more than three and a half years and you might wonder what crime he has committed.

It is Bicycle theft. Why is he still in jail, when all his co-accused have been released on bail? The possible reason is that he cannot afford a lawyer nor has he been approached by a district legal service lawyer. Visheshwar is not alone, there are many who have been kept in prisons when they should have been granted bail instead. This makes one wonder what justice truly means. How effective is the legal principle ‘Bail is a rule, jail is an exception’? This blog discusses the issue of overcrowding in Indian prisons, the violation of fundamental rights under the Indian Constitution and suggestions to make the prison system more effective.

BACKGROUND

According to the 2021 National Crime Records Bureau (NCRB) report; 5,54,034 prisoners are crammed in 1319 prisons in India, whereas these prisons only have a capacity of 4,25,609 inmates. The report suggests that the overcrowding and congestion in Indian prisons have increased from 118 percent to 130 percent. On 26th November, the occasion of Constitution Day at the Supreme Court, President Draupadi Murmu by sharing her experience of visiting prisons in Odisha and Jharkhand, further raised questions regarding the issue of overcrowding in jails, extended pretrial detention and the social background of those languishing in prisons. This is not the first time that a leader has touched upon the issue of overcrowding in Indian prisons. The issue has knocked on the doors of the Supreme Court and High courts on multiple occasions, over the past decade. The possible reason for overcrowding in prisons is the socio-economic background of most of the prisoners. According to Professor Vijay Raghavan,

“Prisoners granted bail are definitely not dangerous. They are still inside as they cannot produce the bail bond or surety due to poverty. There are also those whose lawyers abandon them because they can no longer pay their fees. For those who don’t have lawyers at all, there is the state legal aid system and district legal services authority, but these lawyers are paid small honorariums and don’t take the work seriously.”

The inefficiencies in India’s bail system, non-appearance of the witness on the hearing dates, delay in police investigations and reluctance by the district courts to grant bail are the key reasons behind the high number of undertrials in India. There is a present need to introduce a separate bail act to streamline the process of granting bail in the country. Presently, The Code of Criminal Procedure (CrPC) 1973 does not explicitly defines ‘bail’ although the crimes are defined under bailable and non-bailable offences under the Act.

Section 436 of the Act deals with bailable offences. According to the S.436 of the Act, the Court or the police is bound to release the accused as soon as they are willing to furnish the bail. By submitting a bail bond, the accused assures the court that they will follow the rules established by it and appear in court. A criminal justice system must guarantee the accused's liberty and their right to a fair trial as a fundamental component.

THE PRESSING NEED FOR REFORMS IN PRISON SYSTEM

The case of Satender Kumar Antil v. Central Bureau of Investigation, established new rules for arrests in order to ensure strict adherence to Sections 41 and 41A of the CrPC, 1973. The circumstances under which a police officer may make an arrest without a warrant are outlined in Section 41. On the other hand, Section 41A mandates that the investigating agency must send a notification before making an arrest under certain circumstances. The Hon'ble High Courts also ordered to find out which offenders are awaiting trial and are unable to abide by the terms of their bail. The landmark case assisted by highlighting the issue of the need of a separate bail act, rather than just having the primitive legislation of CrPC, so as to make granting bail easier. Recently, Chief Justice D.Y. Chandrachud has signified the function of the lower courts in upholding the constitutional right to liberty. An accused liberty can be deprived by wrongfully restraining or confining them to jails. The deprivation of an accused’s personal liberty without a speedy trial violates Article 21 of the constitution. The basic principle of the criminal jurisprudence, innocent until proven guilty, is violated when an accused is deprived of their right to liberty due to unnecessary confinement.

The issue of prolonged detention of pre-trial prisoners is one of the key challenges of the country. So, what is the way out? How can we curtail the problem of overcrowding in prisons and pro-longed detention of pre-trial prisoners? One of the solution has been stressed upon by the Supreme Court in 2022, is to have a separate Bail Law. But What else can be done? Firstly, We need to understand the demographics of the majority that are locked up in under-trial prisons. These are marginalized communities that lack legal awareness and are deprived of legal aid. These communities due to their socio-economic status are not able to pay the bail bonds. This does not mean that they are dangerous and have to be necessarily kept behind bars. One of the alternatives to incarceration can be community service for certain offences, as well as giving adequate work to the prisoners which earn remission, leads to early release.

This method not only reduces the overcrowding of the Indian prisons but also gives a chance to the prisoners for personal development. The other alternative is to improve the accessibility to the justice system through e-courts and motivate lawyers to get involved in pro-bono. This will help in making sure to provide aid to the prisoners who cannot afford a lawyer. [SN1]

CONCLUSION

We move towards 2023, with a constant of 70% and above of undertrial prisoners in the jail. This highlights the inefficiency of the Indian legal system and the long road ahead. Why is money still the factor that decides who is a threat to the society and who is not? There is a urgent need to understand the socio-economic conditions of the pre-trial prisoners in order to make the system more efficient. The question of is Justice really being served in the country still stands. Where the prisoners in the USA are getting compensated for prolonged detention; we are still struggling with the problem of overcrowded prisons, delays in hearing procedures, and inefficiency in providing legal aid to those who need it.

References:

1. Bajpai AK& GS, “Explained: What Are the Latest Guidelines on Arrests and Bail Orders?” (The Hindu July 26, 2022) <https://www.thehindu.com/news/explained-what-are-the-latest-guidelines-on-arrests-and-bail-orders/article65681264.ece>

2. Das A, “Issues of Personal Liberty Must Be Adjudicated with a Sense of Urgency : CJI D.Y. Chandrachud” (Live Law December 31, 2022) <https://www.livelaw.in/top-stories/cji-chandrachud-personal-liberty-supreme-court-217786>

3. Prison Statistics India 2021(National Crime Records Bureau 2021), 10 <PSI_2021_as_on_31-12-2021.pdf (ncrb.gov.in)>

4. Shantha S, “Why Judiciary and State Should Pay Heed to President Murmu's Concerns over Prisoners' Rights” (The Wire November 29, 2022) <https://thewire.in/government/droupadi-murmu-prisoners-rights-judiciary-government>

5. Sharma A, “Long Forgotten: India's Pretrial and Undertrial Prisoners ” (Frontline December 23, 2022) <https://frontline.thehindu.com/social-issues/indian-jails-are-overcrowded-with-pretrial-and-undertrial-prisoners-from-poor-and-marginalised-communities/article66234747.ece>

6. Shrimansi, “Explained: Why Is Supreme Court Stressing on a Separate Bail Law?” (India.com July 18, 2022) <https://www.india.com/explainer/explained-why-is-supreme-court-stressing-on-a-separate-bail-law-5520390/>

7. देश की जेलों में कैद Undertrial Prisoners की बिग पिक्चर | Janab Aise Kaise ।Quint Hindi (Quint Hindi 2022) <https://youtu.be/9fFSmRTqB_k>

[SN1]Apart form community service the author can also include the other important measures to control overcrowding in prison like giving adequate work to the prisoners which earn remission, leads to early release and may also include e-courts as an important method to improve accessibility to the justice system.