Generally, the president of India sticks to the policies of the central government in their speeches and statements. But President Droupadi Murmu’s speech at a Constitution Day function on 26 November 2022 must definitely have caused some unease in the judiciary and the government. When, digressing from her written speech, she talked about the predicament of undertrial prisoners, the Dalitbahujan of the country felt she was speaking for them.
Addressing an august gathering comprising Chief Justice of India D.Y. Chandrachud, Union Law Minister Kiren Rijiju and chief justices of various high courts, the President recalled that when she was the chairperson of the Standing Committee of the Home Department of Odisha, she got an opportunity to visit the jails in the state; she held meetings on prison reform with government officers and presented her own suggestions. She said that while some things did change, the kind of changes she was aiming for could not come about. “Just think about those languishing in prisons for years. They know nothing about the Preamble to the Constitution of India, about their fundamental rights and their fundamental duties. No one has any concern for them. Their families cannot bring them out of prisons as everything they own is already sold off to meet the expenses of fighting their cases in courts,” President Murmu said.
She did not stop here. Drawing on her prison visits, she went on to say something that amounts to serious indictment of our judicial system. She said, “Those who take the lives of others roam free, but those who have committed petty offences rot in jails. They even fear society, which looks down upon them.”
But the most important question the President posed was whether building new jails was the answer. “I have been hearing that we need to construct new jails as the present jails are overcrowded. If we are progressing as a society, we will have to mull over why we need more jails. We should in fact shut down the existing ones,” she said.
President Murmu said, “I leave this issue to the judges and the Union Law Minister. I don’t want to say anything more. I will keep my statement incomplete. I hope that you have understood what I have stopped short of saying.”
Two things were very clear from the president’s statement. She talked about the limitations of the present judicial system and indicated that our judicial system has not been providing justice to the Dalitbahujan. A survey of undertrials in Indian jails would show which communities a majority of them belong to.
According to the National Crime Records Bureau (NCRB), in 2020, of the inmates of prisons all over the country, 76.1 percent were undertrials. These individuals have not been pronounced guilty. Many of them are yet to be charge-sheeted and in the case of many others, the trial is yet to begin. Only 23 per cent of the inmates are convicts.
According to media reports, around 19 per cent of the undertrials and 17.4 per cent of the convicts are Muslims. Dalits form 19 per cent each of undertrials and convicts, and Adivasis are 14 per cent. Dalits and Adivasis form 17 per cent and 7.5 per cent respectively of the general population. The share of OBCs among the undertrials and the convicts is 38 percent. These figures show how deprived sections are overrepresented in the prisons.
Isn’t this abjectly unjust? This shows that casteism is rampant in the judicial system. A large number of people accused of petty crimes spend a lifetime in jails without even a trial. No one cares about them. President Murmu spoke about this bitter reality in the presence of the representatives of the judiciary and the government.
Currently, the collegium system is at the centre of a furious debate in judicial and governmental circles. This debate has proved that nepotism in higher judiciary is a reality. From the outset, familial connections have played a part in appointments to the Bench. According to a survey, of the judges appointed to the Supreme Court from 1950 to 1989, 40 per cent were Brahmins and another 50 per cent belonged to other Savarna castes. The non-Brahmin Savarna castes included Kayasthas, Reddys and Banias. Dalit, Adivasi and OBC judges have never formed even 10 per cent of the strength of the Supreme Court. After 1989, the situation worsened with just three powerful castes claiming a lion’s share of the new appointees. Of the 256 Supreme Court judges appointed thus far, merely five were SCs, only one an Adivasi, and just 11 were women. Until 1989, only four judges came from the OBCs. Presently, only one judge is an OBC.
The condition is even worse in the lower courts, where even lawyers from the deprived communities are few and far between. Thus a caste nexus, which is both visible and invisible, is operational from the administration to the police to the judiciary. It needs to be broken.
But blaming only the judiciary for this situation would mean giving a clean chit to the executive. The present executive, under its Hindutva agenda, wants to saffronize the entire justice system. We also need to contemplate as to why the central government has suddenly turned aggressive against the judiciary. Is it because the accused in the Bhima-Koregaon case have been granted bail? After Varavara Rao and Sudha Bharadwaj were released on bail, government lawyers vehemently opposed the bail pleas of Gautam Navlakha and Anand Teltumbde. From the stand taken by the central agencies in the case of Delhi University’s Professor G.N. Saibaba, it would seem that he is a dreaded terrorist. The fact is that the professor is 90 per cent physically disabled and needs an assistant round the clock. He has several ailments and should have been granted bail on health grounds. Also, the Supreme Court had recently asked some uncomfortable questions to the government on the appointment of the chief election commissioner.
There are other issues, too. Is the government uneasy because of the appointment of Justice Chandrachud as the chief justice of India? He will have a two-year term, up to the 2024 Lok Sabha elections. If the Supreme Court takes tough decisions in the intervening period, the Narendra Modi government may be in trouble. Is the government trying to put the judiciary under pressure as part of a strategy? Does the government want a “committed” judiciary that doesn’t challenge its decisions?
Coming back to President Murmu’s observations, more than the judiciary, the governments are to be blamed for the growing number of pending cases in courts. The Supreme Court and the High Courts do not have enough judges. The Centre has refused to approve individuals proposed by the Supreme Court Collegium for appointment to the Supreme Court and the High Courts. The government has returned the files pertaining to these appointments. The pending proposals include the name of well-known Delhi lawyer Saurabh Kirpal, the son of former chief justice B.N. Kirpal, who is openly gay.
There is no denying that since 2014, the government and the ruling party have been using jails as a weapon to silence and penalise its opponents. Even people staging peaceful dharnas and demonstrations have been arrested. This is the first Government of India which seems to be on a mission to destroy the country’s prestigious universities. Youth and students voicing their demands have been sent to jail and even charged with treason. Thousands were herded into prisons for agitating against the Citizenship Amendment Act (CAA) and booked under serious sections. Many of them have been released but many are still in jail.
Be that as it may, on 29 November 2022, paying heed to the comments of President Droupadi Murmu, Justice Sanjay Kishan Kaul directed the Solicitor General of India Tushar Mehta to collect data from all prisons regarding prisoners who are charged with petty crimes but are languishing in jails for years. The judge said that the data should include the name of the prisoner, a brief description of his alleged crime, orders on bail pleas if any, and possibilities of release.
While the issue of adequate representation in the higher judiciary for all communities needs to be addressed, it is also important that the delivery of justice is not impeded by political interference.
(Translated from the original Hindi by Amrish Herdenia)
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