Long Wait for Justice
Vijay Raghavan (firstname.lastname@example.org) teaches at the School of Social Work, Tata Institute of Social Sciences, Mumbai.
Across the world, prisons are increasingly used as instruments of social control. With its huge undertrial population in jails, India is headed in the same direction. Measures like restricting visitors’ access to prisons only aggravate the situation.
The Indian reality of prisons is a picture of jails overflowing with undertrial prisoners, most of whom are from poor and marginalised communities. Thousands of them continue to languish in prisons despite landmark judgments by the Supreme Court and various high courts.
Many of them are in prison for petty and minor offences and are unable to avail of bail due to a lack of suitable sureties or an inability to pay cash bail. The 2015 judgment of the Supreme Court by the two-judge bench of Justices Madan Lokur and U U Lalit to immediately release undertrial prisoners who have completed half the period of the maximum possible sentence on a Personal Recognizance (PR) Bond, is a reiteration of the earlier judgment of the apex court in September 2014 which passed the same directions. The Court has directed the National Legal Services Authorities (NALSA) to coordinate with state authorities and the home ministry to ensure that state undertrial review committees are established in every district within a month. These must consider release of undertrial prisoners entitled to the benefit of Section 436A of the Criminal Procedure Code (CrPC).
Efforts to decongest Indian prisons and reduce the undertrial population have been ongoing for more than two decades. It is pertinent to note that despite initiatives like setting up fast track courts, providing infrastructure grants under the modernisation of the prisons scheme, digitisation of court records, and writing to state governments to monitor the release of undertrial prisoners on personal bond, which have been undertaken by successive governments,1 the number of undertrial prisoners in the country’s prisons continues to hover around 65% of the total prison population.2
Three Key Issues
A deeper analysis of the situation is therefore required to address the problem. There are three key Issues that need to be dealt with. The first is the lack of quality legal aid services for undertrial prisoners who cannot afford the services of good lawyers to defend themselves in court. While the state does provide free legal aid services to needy persons through the district and taluka legal services authorities, often the quality and consistency of these services are questionable. There are too many complaints against these lawyers about irregular appearances in courts, lack of communication with their clients about the status of their cases and, most importantly, the poor defence put up by them at the bail and trial stages. The main reason behind these complaints is the very poor honorarium paid to the legal aid lawyers.
The second issue affecting the situation is the financial system of bail that exists in our country. This means that an accused has to deposit the bail amount in the court till the end of the trial in case of cash bail, or produce a surety who can prove that he can pay the bail amount specified in the bail order in case the accused absconds. This implies that if a person is poor and cannot pay the cash bail or produce a surety, he/she will continue to languish in prison till the trial ends. The PR Bond is meant for such undertrials. This has been reiterated by the apex court in various landmark judgments and has been cemented by the amendment in CrPC under Sections 436 and 436A.
Importance of Section 436 Cases
Section 436 specifies that if an undertrial arrested in minor offences continues to languish in prison for more than a week after his bail order has been passed, he/she can be assumed to be indigent and therefore shall be released on a PR Bond by the trial court.
Section 436A specifies that in serious offences, if the undertrial has completed more than 50% of the maximum sentence that can be awarded to him/her under the section for which he/she has been charged, he/she shall be released on a PR Bond by the trial court. It is under these sections that the Supreme Court has passed orders to release as many undertrial prisoners who are eligible to be released and has asked high courts and NALSA to monitor the situation on a regular basis.
However, the apex court orders have laid greater emphasis on Section 436A rather than on Section 436. Thanks to the continued focus on the situation of undertrial prisoners across the country, it is likely that cases of Section 436A, that is, undertrials languishing in prisons for more than half the maximum sentence possible, are very few in number. We may have a far greater number of prisoners languishing in prisons for less serious offences who can be released on a PR Bond under Section 436. The courts are not paying adequate attention to Section 436 cases, and hence the number of undertrial prisoners continues to remain more or less the same.
The third issue at stake is the long time taken to complete the trial process. This, in turn, is related, in more ways than one, to the very poor judge–population ratio in India, which stands at 14 judges per million population, as compared to between 35 and 50 judges per million population in most advanced countries. The idea of fast track courts was an ad hoc attempt to increase the judge–population ratio by setting up additional courts on a temporary basis to hear cases at the sessions courts level by appointing judges on a contract basis. While the pendency of cases at the sessions courts level has come down substantially in the last decade because of this innovation, it has come at the cost of what some say, justice per se. The emphasis of these courts has been more on speedy disposal of cases rather than on “due process.” It has been seen that these fast track courts have substantially higher conviction rates compared to the regular courts, despite the fact that the legal process adopted is the same in both courts. Defence lawyers allege that the judges are in a hurry to finish the trial in fast track courts and often give a go-by to the adage of proving a case beyond reasonable doubt.
If we are serious about reducing the pendency of cases in our courts, we will have to increase our judge–population ratio substantially and alongside bolster the court infrastructure and additional human resources needed for courts to function effectively. These measures have to be accompanied by other measures such as decriminalisation of minor offences, using the provision of arrest by the police with greater discretion, implementing the provision of the police granting bail in bailable offences while the undertrial is in police custody and computerisation of the criminal justice process, timely provision of police escorts to take undertrials to courts on their court dates. Other measures needed include implementation of the Probation of Offenders Act which provides for releasing the offender in less serious offences back to the community on a “bond of good behaviour” or under the supervision of a probation officer for a fixed period of time (usually between one and three years), instead of sending the person to prison.
The Ministry of Home Affairs (MHA) has reportedly decided to establish a national fingerprint database of convicts and those arrested for criminal offences by collating records from all the states, according to a report published in the Economic Times on 16 August 2015.While this move is projected to improve crime detection methods, one needs to look at issues relating to protection of the legal rights of prisoners, particularly in the case of undertrial prisoners. This move runs contrary to the principle of Indian legal jurisprudence whereby persons arrested for alleged commission of offences are considered innocent until proven guilty. Such a move can also lead to the police framing persons who have been arrested earlier in cases where they are not otherwise able to find evidence. It is very important that we do not lump all categories of prisoners in the same basket of “dangerous criminals.” There is a need to disaggregate the sub-categories within the prison population and address the issues based on the disaggregation of data.
This move comes close on the heels of guidelines issued by the MHA on 24 July 2015 for prison visitors—individuals, press, NGOs or companies, whereby it severely restricts the entry of visitors.3 These guidelines are an indication of the deep suspicion and mistrust between the state and civil society organisations, leading to executive overreach that has become characteristic of neo-liberal governments across the world.
Controlling the ‘Unruly Class’
These steps seem to fall in line with the neo-liberal regime that promotes restrictive “workfare” for the deserving poor and expansive “prisonfare” for the undeserving poor, who constitute the vast majority of the “urban outcasts,” according to Lois Wacquant (2010). As the gap between the rich and the poor widens under neo-liberalism, prisons and custodial institutions become a powerful tool in the hands of the state to control the “unruly classes,” who are a threat to status quo and the neo-liberal social order. Chambliss (1964), in his article about the birth and growth of vagrancy laws in the United Kingdom, highlights the fact that the vagrancy laws were first enacted to prevent the rural–urban movement of labour from the feudal-agricultural to capitalist-industrial complex, due to shortage of agricultural labour owing to the plague epidemic in 17th century England. Later, as feudalism gave way to capitalism, the same laws were tweaked to sedentarise and custodialise the homeless and unruly classes in urban spaces, who were viewed as a threat to the capitalist social order. Across the world, prisons are increasingly used as instruments of social control, which are aided by the enactment of harsh laws. These laws derive their legitimacy from the spectre of rising and brutal crimes which the state and mass media hold as a mirror to an increasingly confused and fearful citizenry.
In my opinion, curtailing the entry and involvement of civil society organisations and academic institutions into our prisons would be detrimental to improving the situation of prisoners in the country. Successful experiments have been conducted by law colleges in the past to involve students in providing legal guidance to undertrials and other sections of the needy population. Para-legal workers can make regular visits to prisons and identify cases which can be released on a PR Bond under Section 436 or 436A. NGOs with socio-legal expertise can be encouraged to work in prisons and a grant-in-aid scheme can be started by the government to provide financial support to such organisations, which can provide regular and systematic services to undertrial prisoners, families of prisoners and released prisoners. Last, and perhaps most important, the prison departments should create a cadre of trained social workers to work with prisoners, families of prisoners and released prisoners towards promoting their legal rights and rehabilitation. These measures will go a long way in addressing the decades-long issue of undertrial prisoners languishing in the prisons of our country.
1 Under the 1999–2004 National Democratic Alliance (NDA) regime, the United Progressive Alliance (UPA) governments I and II and the present NDA government.
2 As per the Prison Statistics India Report 2013, the percentage of undertrial prisoners in the country is 67.6%.
3 The guidelines state that “no private individual/Press/NGO/Company should ordinarily be allowed entry into the prison for the purposes of doing research, making documentaries, writing articles or interviews etc.” These guidelines are applicable to all the visitors, whether foreigner or Indian including individuals, companies, press, researchers, film-makers. The guidelines however add that the state governments may give permission to prison visitors if their work is “for the purposes of creating positive social impact, or relating to prison reforms, or if the State/UT Government itself decides to invite press/filmmakers to cover a particular event”. Among the various conditions laid down to restrict the entry of prison visitors, the guidelines specify that “the visitor shall also submit a Security Deposit of Rs 1 lakh by way of a Demand Draft/local Bankers’ Cheque in the name of the Jail Superintendent of the concerned jail. However, the State Government/UT Administrations may dispense with or modify this requirement in case of research studies undertaken by students”. The guidelines provide for forfeiture of the security deposit amount in case a prison visitor violates any of the conditions specified in the guidelines.
Chambliss, W J (1964): “Sociological Analysis of Vagrancy,” Social Problems, Vol 12(1), pp 67–77, DOI: 10.1525/sp.1964.12.1.03a00070.
Wacquant, L (2010): “Crafting the Neoliberal State: Workfare, Prisonfare and Social Insecurity,” Sociological Forum, Vol 25(2), June, pp 197–220, DOI: 0.1111/j.1573-7861.2010.01173.x.