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Jail, Bail and the Poor

-EPW

Despite curative measures and judgments, undertrials who are poor continue to rot in jails.

The public debate over bail to the 2G spectrum accused and the controversy over the parole granted to murder convict Manu Sharma has unfortunately sidestepped a much more pressing concern – the plight of poor undertrial prisoners who have spent years inside jail without being convicted of any offence. A series of Supreme Court judgments over the past three decades have led to changes in provisions of the Criminal Procedure Code (CrPC) to enable the poorest among them to either get bail or be released on a personal bond. Going by the numbers however, these Court rulings have not been implemented effectively. According to the 2009 report of the National Crime Records Bureau (NCRB), of the 3,76,969 prisoners, 2,50,204 (66%) are undertrials and a little more than 2,000 of them have spent more than five years in prison. In addition, 1,196 women undertrials with their children (1,314) were in jail. Not only do these undertrials suffer the consequences of surviving for years in overcrowded, badly maintained and violence-prone prisons, the socio-economic devastation visited upon their families is no less horrific. Ironically, many undertrials spend more time in jail than the sentence their crime would have carried had they been convicted.

Under bailable offences, payment of bail releases the accused from legal custody pending trial or investigation and is premised on the guarantee that he or she will submit to legal authority in the course of an investigation. In non-bailable offences, it is left to the discretion of the court to allow or deny bail. Some of the reasons for the large number of undertrials in India include the inability of the accused who are poor to provide surety, their ignorance of their rights under the system and the excruciatingly slow police investigations and delay in trials. There have been efforts to deal with some of these factors. For instance, Section 167 of the CrPC lays down that the maximum time for investigating offences that attract the death penalty, life imprisonment or imprisonment of more than 10 years is 90 days. For all other offences it is 60 days. Should the investigation not be completed within the required time, the magistrate must release the accused on bail. In 2005, Section 436-A was inserted in the CrPC permitting an undertrial to apply for bail once he or she has served one- half of the maximum term of the sentence that he/she would have received had he/she been convicted.

The Supreme Court’s judgments particularly in the State of Rajasthan vs Balchand (1977), the Moti Ram and Others vs State of MP (1978), the Maneka Gandhi vs Union of India(1978) and the Hussainara Khatoon and Others vs Home Secretary, State of Bihar (1980) cases are also noteworthy. These tried to ensure not only the criminal judicial system’s sensitivity to the poverty of the undertrials but also speedy police investigation. In Hussainara Khatoon and Others vs Home Secretary, State of Bihar, the ruling stated, “Fairness under Article 21 is impaired where procedural law does not provide speedy trial of the accused; does not provide for his pre-trial release on bail on his personal bond, when he is indigent and there is no sub­stantial risk of his absconding…” There could be no clearer ­indictment of a system that has failed to provide these basic rights to the poor.

Why have these changes in the CrPc provisions and the Supreme Court’s rulings not resulted in relief for under­trials? Clearly, many of these changes have not yet been implemented. But there are several other steps that could also be considered. For instance, there is a suggestion that only undertrials capable of absconding or committing similar offences should be sent to custody and that judges must take into account the overcrowding of jails and the strain on the exchequer whilst deciding on bail. Also, given the overall bias against the poor and marginalised in the criminal justice system, there have to be specific and institutional mechanisms to ensure that poor people are informed about their right to free legal assistance, about bail procedures and their rights as undertrials.

It is also clear, in the light of the current state of affairs where despite changes in the law and court rulings the situation of poor undertrials remains virtually unaltered, that a change in attitude among all those involved at the ground level – the police, the prison staff and the lower judiciary – is imperative. It is at the first point where the poor encounter the law enforcement machinery that they face the biggest injustice – that of being denied knowledge of their basic rights. The statistics will change only when we find a way to deal with the lack of sensitivity among those tasked with enforcing the law as well as protecting the vulnerable.