The Supreme Court recently gave certain directions regarding release of undertrial prisoners. A huge number of undertrial prisoners is aggravating the problem of overcrowding in jails. In the prisons of Uttar Pradesh, for instance, the average overcrowding was 1.88 times the capacity, whereas maximum overcrowding in a jail was 3.78 times! The Supreme Court order is in respect of releasing the undertrial prisoners of the following two categories:
- Those undertrial prisoners who are in jail in bailable offences after having been granted bail by the court, because they are too poor to afford sureties under Section 436 of the CrPC.
- Those who have been in jail for longer than the maximum possible sentence; or have been in jail for longer than one-half of the maximum sentence provided for the offence as per section 436-A of CrPC.
Let us see the data in respect of these categories of prisoners. For the prisons in Uttar Pradesh in 2010, the table below gives the status of prisoners booked under CrPC’s Section 436(1) and Section 436A:
|Month/Year||Section 436(1) Proviso||Section 436A|
The case of the indigent prisoners
As for poor indigent people mentioned above, the situation on the ground is that neither the prison authorities nor the court follow due diligence. If a person completes one week in a bailable offence, he is deemed to be an indigent person and has to be released on his personal bond. The court should not authorise his detention for a longer period than one week. Once he is produced before the court after a week, he should be released on his personal bond the same day. He should not go to the prison again. It is also the duty of prison authorities to move court on the eighth day for his release on personal bond, and the court should order accordingly on the same day. But as can be seen from the table above, even when cases are put up by prison authorities before courts, only about two thirds are actually released.
However, it is pertinent to mention that this provision critical though it is for human rights issue, is not likely to significantly reduce the number of undertrials in our prisons. This number is not very large. In Uttar Pradesh prisons where the total prison population was over 85000, the number of indigent prisoners was only around 3500. If care is taken at the time of first remand, then there would not arise a situation where indigent persons have to languish in jail for want of sureties.
The case of the non-bailable offence
The situation in the case of the persons suffering continued pre-trial detention in non-bailable cases is somewhat complex. It is a wise provision to state that a person should not be in jail as an undertrial prisoner for more than half of the maximum permissible punishment. Normally such a person should be released on his bond or bail. But a provision in Section 436A that the court may not so release if the prosecution raises objection, nullifies its beneficial impact. As is clear from the table above, the success despite strong initiative by prison authorities was about 32 to 39 %, and in one month it was actually 11.1%.
Unless the courts, the prosecutors, the police, the media and the civil society all support the rule of law and civilised democratic criminal justice system, the situation is not likely to improve. In essence, the pre-trial detention should not be inflicted as punishment if the offence is serious or the conviction level is very low.
A failure of our criminal justice system?
It will be of interest to have a look at the position of undertrial prisoners in a few other nations:
|SR No.||Country||Undertrials as % of total No. prison population|
This ought to be an eye opener. A long undertrial detention is a sign of a failing criminal justice system. The Indian figure at 66.2 % is one of the worst in the world and we are in the company of countries like Pakistan and Bangladesh. Our position is much worse as compared to our south-east neighbours like Indonesia and Malaysia. Even China is much better than us in this regard. A large percentage of the prisoners are under detention for periods as long as 3 to 5 years. As a country professing rule of law, pre-trial detention should be only to ensure that the accused does not evade the criminal justice system. To tone-up the system, legal provisions to the following effect are urgently called for:
- A person should be arrested during investigation, only if there are grounds to show that the accused will abscond or commit serious crime.
- Total pre-trial detention in case of acquittal or the detention period in excess of the sentence ultimately awarded to a person should be compensated at an honourable rate; say at the rate of the pay of a group-A central government servant. An order to this effect must be part of the court judgment.
- In case of an acquittal, the compensation should be recoverable from the police officer making the arrest.
- Under-trial period should also necessarily qualify for usual remissions in the sentence ultimately to be undergone. The requirement of rule of law is that the law should be just, reasonable and fair. If it is not so, it is no law.
What is just, reasonable and fair?
Just: – Lexically it means, legally right, lawful, equitable, fair, adequate, right in law or ethics.
Reasonable: – means fair, proper or moderate under the circumstances, according to reason, being in agreement with right judgment, not conflicting with reason.
Fair: – means impartial, just, equitable, disinterested, free of bias or prejudice. It conveys some idea of justice or equity, impartial, free from suspicion of bias, equitable.
From the above we can deduce the working definitions of these words as follows:
Just: – Right in ethics and public perception
Reasonable: – According to reason
Fair: – Impartial and independent
Rule of law and challenges
In a society that is in transition from political subjugation and social inequalities to democracy and social justice, it is but natural for different social groups to put conflicting demands on the system. Besides, the mindset of people especially those in governance and intelligentsia, has not changed with transition from autocratic British rule to democracy. Unfortunately, this mindset does not change in a reasonably speedy way unless special efforts are made by social and political reformers. We find no worthwhile efforts in this direction. It is a painful process to reform this type of mindset; but there are no options really.
What is a free society?
A free society as Mahatma Gandhi said is a society where people have the courage to resist the abuse of authority. This necessitates the rule of law. In order that resisting abuse of authority does not entail state repression by authorities, it is necessary that criminal prosecution and civil liabilities should be ordered only in serious, violent and other grossly anti-social conducts. In a free society, the virtues of liberty, equality and fraternity have to be firmly established. What does it mean?
- A large volume of unpalatable conduct has to be accepted or tolerated. Some of it could be left as it is and some should be curbed by social and political actions, but not by criminalising non-violent conduct simply because those in authority or influence do not seem to like it.
- Civil action should not entail jail; else it will practically become criminal.
- Only grossly objectionable and violent conduct should be brought under criminal law.
- All civil and criminal laws should be prompt besides being just, reasonable and fair.
- All law making and enforcement should be guided by the feeling of fraternity.