#dnaEdit: Lost in prison

The Union government’s proposed move to release undertrial prisoners who have served at least half the maximum sentence that would have been awarded to them if convicted, is a step in the right direction. Of 3.81 lakh prisoners, it is estimated that 2.54 lakh are undertrial prisoners(UTPs). Importantly, those accused of offences carrying death penalty or life imprisonment would not benefit from this relaxation. For long, it has been accepted that the prevailing system of monetary bail was biased against those who did not have access to legal aid or the means to foot hefty bail bonds or people to stand as sureties to guarantee their presence in court. Acknowledging this as discriminatory, judges do enlarge prisoners on bail upon them furnishing a mere personal undertaking, but they are few in number.

Despite the present initiative, the slow pace of legal reforms in the country is a matter of concern. In 1978, the Law Commission’s 78th report had indicated that the total prison population of 1.84 lakh included a whopping 1.01 lakh UTPs. But another 28 years elapsed before the Centre accepted that the criminal justice delivery system had failed to deliver timely justice to either victims or the accused. In the interim, influential Supreme Court judges like VR Krishna Iyer and PN Bhagwati had lashed out at the monetary bail system in several judgments. In 2005, the UPA government amended the Criminal Procedure Code to insert Section 436A, which gave statutory backing for this same move now being conceived by the law and home ministries. As with most other welfarist reforms initiated by the UPA, the lack of political will relegated Section 436A to a bureaucratic exercise. Review committees headed by the district judge with the superintendent of police and metropolitan magistrates as members were to meet every three months. Bereft of monitoring, these failed comprehensively.

For the NDA government, Section 436A was an obvious candidate as a low-hanging fruit to tackle in its 100-day push.  But it must ensure that such review committees do no fade away like those of the UPA-era. More importantly, the criminal justice delivery system must be speeded up to ensure that new prisoners do not face the same ignominy of languishing in jails. The original jurisprudence on bail held that bail must be granted when the accused’s presence can be assured in court for the next hearing, the accused would not commit another offence while on bail, and that the accused would not intimidate witnesses. Too often, magistrates and judges mechanically extend the judicial custody of accused without testing if the undertrial prisoner passes these three conditions for bail. For both the police and the lower judiciary, keeping the accused under incarceration is a win-win scenario as it negates the chances of the accused jumping bail. For the police, this also curbs habitual and first-time offenders from “circulating” in society and committing more offences.

The option of separate jails for housing UTPs must be pursued. Policing must improve to ensure that those enlarged on bail remain committed to the trial process and do not threaten witnesses. A database of UTPs with an automated reporting mechanism that generates information on long-serving prisoners and helps courts to prioritise releases is much-needed. The “bail, not jail” outcry, heard relentlessly when the high-profile 2G spectrum scam accused were lodged in Tihar Jail for over a year, certainly sounds better on a level-playing field for all accused.