THE STATE OF UNDERTRIAL PRISONERS
The Indian reality of prisons is a picture of jails brimming with under trial prisoners, most of whom are from poor and downgraded communities. Thousands of them continue to languish in prisons despite landmark judgments by the Supreme Court and numerous high courts.
Efforts to decongest Indian prisons and reduce the under trial population have been continuing for more than two decades. It is relevant to note that despite initiatives like setting up fast track courts, providing infrastructure grants under the modernization of the prisons scheme, digitization of court histories, and writing to state governments to monitor the release of under trial prisoners on personal bond, which have been accepted by successive governments,1 the number of under trial prisoners in the country’s prisons continues to fly around 65% of the total prison population.
There are three key Issues that need to be allocated with. The first is the lack of quality of legal aid services for under trial prisoners who don’t have enough money for the services of good lawyers to defend themselves in court. While the state does provide free legal aid services to deprived persons through the district and taluka legal services authorities, often the quality and steadiness of these services are questionable.
There are too many complaints against these lawyers who make irregular appearances in courts, who lack communication with their clients about the status of their cases and, most importantly, the poor defenses put up by them at the bail and trial stages. The main reason behind these complaints is the very poor stipend paid to the legal aid lawyers.
The second issue upsetting the situation is the financial system of bail that exists in our country. This means that the suspect has to deposit the bail amount in the court till the end of the trial in case of cash bail or produce a security who can prove that he can pay the bail amount specified in the bail order in case the suspect absconds. This implies that if a person is poor and cannot pay the cash bail or produce a surety, he/she will continue to suffer in prison till the trial ends.
IMPORTANCE OF SECTION 436
Section 436 specifies that if an under trial detained in minor offences continues to suffer in prison for more than a week after his bail order has been passed, he/ she can be expected to be indigent and therefore shall be unrestricted on a PR Bond by the trial court.
Section 436A specifies that in serious offences, if the under trial has accomplished 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 approved orders to release as many under trial prisoners who are eligible to be released and has asked high courts 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 suffering in prisons for less serious offences who can be released on a PR Bond under Section 436. The courts are not paying satisfactory amount attention to Section 436 cases, and hence the number of under trial 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 oneto the very poor judgepopulation ratio in India, which stands at 14 judges per million population, as compared to between 35 and 50 judges per million population in most progressive countries.
The idea of fast track courts was an ad hoc attempt to increase the judge population relation by setting up additional courts on a provisional 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 significantly in the last decade because of this revolution, it has come at the cost of what some people say, justice per se.
The emphasis of these courts has been more on quick disposal of cases rather than on due process. It has been seen that these fast track courts have considerably higher conviction rates compared to the regular courts, despite the fact that the legal procedure adopted is the same in both courts. Defense lawyers assert that the judges are in a hurry to end the trial in fast track courts and often give a go-by to the proverb of proving a case beyond reasonable doubt.
In my opinion, limiting the entry and involvement of civil society organizations and academic institutions into our prisons would be harmful to improving the situation of prisoners in the country.
Successful experiments have been led 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 consistent 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 organizations, which can provide regular and consistent services to undertrial prisoners, families of prisoners and released prisoners.
Last, and perhaps most important, the prison departments should create a squad of trained social workers to work with prisoners, families of prisoners and free prisoners towards promoting their legal rights and rehabilitation. These measures will go a long way in addressing the years long issue of under trial prisoners suffering in the prisons of our country.
By: Swati Rai, Amity Law School Noida.