The issue of prisons overflowing with undertrials has been raised from time to time but no effective step has so far been taken to resolve it. According to an estimate, of the total 3.81 lakh inmates in Indian prisons, 2.54 lakh are undertrials. This means that almost two thirds of the jail inmates are those against whom no offence has been proved. The law says that the undertrials who have served half of the maximum sentence that may be awarded to them in case of conviction should be released. But this law is seldom observed. The lower courts are not very alive to this problem. The result is that the number of undertrials is increasing day by day.
A division bench of the Supreme Court, headed by the previous Chief Justice of India R.M. Lodha, observed that this law should be implemented seriously and effectively. The court ordered judicial officers of the lower courts to visit every jail under their jurisdiction and identify undertrials who have spent at least half of the maximum possible term in prison and to ensure their release.
The SC had given two months to the judges to complete this exercise. The undertrials facing charges that may fetch them life imprisonment or death penalty, will, however, not benefit from this order.
The bench comprising Justice R.M. Lodha, Justice Kurian Joseph and Justice Rohinton F. Nariman had made it clear that no lawyer needs to be present when the judicial officers issue orders releasing such prisoners. After completing the exercise, the judicial officers are to submit a report to the Registrar General of the High Court concerned. They, in turn, are to forward the reports to the Registrar General of the Supreme Court. This step of the apex court promises to revolutionize the criminal justice system of the country and reduce the burden on the lower courts and jails.
A law on paper
There is nothing new in the SC order on undertrials. The Criminal Procedure Code (CrPC) already provides for the release of such prisoners. However, the governments so far have simply ignored this provision. Section 436-A of the CrPC fixes the upper limit of the incarceration of undertrials. The section says, “Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.” Despite such a clear legal provision, the law has never implemented with the seriousness it deserves.
Successive law commissions and civil liberties organizations have been pleading with the governments that undertrials who have spent a specified period in jail should be released. But pleas have been ignored.
Before the SC issued this order, the central government had said that it would be writing to all state chief ministers to implement this law. Home Minister Rajnath Singh had met Law Minister Ravishankar Prasad in this regard. That is significant because, on occasions, a difference of opinion or approach between the judiciary and the executive comes in the way of implementation of laws and sometimes even leads to a confrontation between the two.
Leaving those arrested for petty offences to rot in jail for years is a clear violation of the rights granted to them by the Constitution. It is also a violation of their human rights. In our country, the criminal justice system is so inefficient and slow that cases drag on for years and the accused are neither convicted nor declared innocent and released. They remain in a legal limbo. A large number of prisoners have to stay in jail because there is no one to bail them out. In many instances, the police tends to frame members of SC, ST and other deprived communities. Once they are put behind bars, it becomes impossible for them to work their way through the legal labyrinth and come out. This is one of the gravest violations of human rights. It is clear that only judicial reforms cannot solve this problem. The government also has to introduce wide-ranging police reforms.
A case of short-staffed courts
Against this backdrop, the Supreme Court’s direction to the lower courts evokes hope. The Supreme Court, in its order on undertrials, has also raised the issue of the huge case backlog in courts. The SC has reminded the government that more than 3 crore cases are pending in courts at various levels. The courts are woefully short of judges, with each having to deal with a huge number of cases. The SC also instructed the government to draw up a roadmap on speeding up the disposal of pending cases. If the SC is angry, it is not without reason. The courts are grappling with a shortage of not only judges but also other staffers. It is distressing that ensuring speedy delivery of justice to the people is not on the priority list of the government.
Published in the March 2015 issue of the Forward Press magazine
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