Whiff of fresh air for undertrials

 More than 2.5 lakh undertrials languishing in over-crowded jails across the country saw a ray of hope when the Supreme Court arrested that ‘bail is the norm and jail is an exception’ and refusal of bail only for the purpose of giving “him (accused) a taste of imprisonment as a lesson” is a wrong notion. All thanks to the high-profile accused in the 2G spectrum allocation scam, the top court said this after they had already spent more than six months in jail.

These words may not be new to legal experts, but judges often seem to forget it, resulting in an increase in the number of undertrials, who often belong to the lower strata of society and do not have the means to hire lawyers or to fulfil the bail conditions financially.

These words of the apex court upholding the right to speedy trial, which overrides the necessity to deny bail, may bring some relief to a majority of the 67 per cent of the jail population in the country.
According to the government data regarding undertrial prisoners, the number of jail inmates has drastically gone up by 50,000. There are several people who languish in jail without being produced before a magistrate even once.

Though their prolonged and unexplained incarceration defies the fundamental right to life and liberty, the state has failed to arrange justice for them.

This judgment opened a Pandora’s box with several pleas reaching various courts in the country — the latest being the application of former Commonwealth Organising Committee chief Suresh Kalmadi approaching the Delhi high court seeking bail saying that when the 2G scam accused can be granted bail, then why he can’t be given bail.

Scoffing at the common perception of bail, the Supreme Court had said, “In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.”

The court also asserted that the right to bail is not to be denied merely because of the sentiments of the community against the accused, which means that courts are not run by the societal pressures but only by the rule book.

However, the same court had, in 2006, cast gloom on many influential persons who had been incarcerated during their trial in a variety of heinous crime cases. It was held that the gravity of offence must be considered while granting bail in such cases.

Scrapping the Allahabad high court order granting bail to a lawyer husband and his wife who are facing the charge of murdering their friend in their own bedroom, the apex court had said: “By now it is well-settled principle of law that one of the considerations in granting bail in non-bailable offences is the gravity and the nature of the offence.” (The Court has the power to grant bail in certain cases involving non-bailable offences too).

Earlier in the case of former UP minister Amarmani Tripathi and his wife Madhumani who were charged with hatching a conspiracy to murder Amarmani’s poetess ‘friend’ Madhumita Shukla, the top court had observed that various circumstances must be considered while granting bail in a serious crime.

The court has to see whether there is any prima facie or reasonable ground to believe that the accused had committed the offence. It must look into the nature and gravity of the charge and severity of the punishment in the event of conviction. It should be probed if a bail seeker could abscond or flee, if released on bail, the top court said and added that his or her character, behaviour, means, position and social and economic standing must not be overlooked.

The court must be sure that the accused wouldn’t repeat the offence if let out on bail or may not intimidate or pressure witnesses or tamper with the evidence. It’s the duty of court concerned to ensure that the accused on bail would not thwart justice.

A bench of justices HK Sema and RV Raveendran had said that the high position that an accused holds can’t be ignored while considering the possibility of tinkering of the evidence or influencing the witnesses in case such a person is let of on bail.

Known as a lawyer for most of the accused who are politically and financially heavyweights, Ram Jethmalani feels chances of absconding can be judged from social circumstances of the accused. If a person is arrested for allegedly committing an offence which isn’t that grave, he shouldn’t be denied bail. There is the least possibility of him absconding from the trial, he added.

The object of bail is to secure presence of the accused. Bail cannot be denied as punishment. Grant of bail is rule to provide fair trial to the accused and to prove his innocence as guaranteed under Article 21 of the Constitution, Jethmalani recently told the Supreme Court while seeking bail for some of the 2G scam accused persons. Law laid down under the Supreme Court decisions are binding, he added.

At a recent interactive conclave, chief election commissioner SY Qureshi touched upon the issue of the right of prisoners to participate in the electoral process. He said there are approximately 2.68 lakh undertrials lodged in different jails across the country. They have been languishing in the jails for many years waiting for completion of their trials.

These undertrial inmates lose the right to vote, a statutory right. Qureshi said that except those undertrial prisoners who had committed heinous crimes such as rape, murder, kidnapping, terrorism and grave acts of fraud, all others ought to be granted bail.

However, the undue delay in introducing reforms in police administration and management, which would make the law enforcement agencies sensitive to the self respect of citizens, is also a major cause for the rising prison population.

Moreover, the neglected judicial reforms, which are also much awaited so that speedy dispensation becomes a reality, do add to the woes of undertrial prisoners.