In custody

We need a more liberal bail regime. Keeping so many under-trials in jail has moral,financial costs

Written by The Indian Express | Published: October 16, 2013 3:20 am

We need a more liberal bail regime. Keeping so many under-trials in jail has moral,financial costs

The Centre has rejected the idea that those under trial for petty crimes be automatically released on bail if they have served a certain length of time in prison. The home ministry has told the Supreme Court that it would be “legally untenable and not desirable” to apply the same rule to all those accused of petty crime. The court is hearing a petition that argues for such a policy if these people have served a year in jail,and if the maximum term prescribed for the offence is up to seven years.

While the home ministry may be right about examining each case on its own merits,this petition flags one of the biggest scandals of our criminal justice system — the extent of unfair pre-trial detention,and the begrudging attitude towards bail. According to the latest figures from the National Crime Records Bureau,64.7 per cent of the prison population consists of “undertrials”,who number over 2 lakh. This means that for every convicted prisoner,there are two more whose culpability is still to be proved in a court of law. Prisons are crowded far beyond their capacity,violence and brutal living conditions mark the environment. Often,even those accused of trivial offences end up serving years in jail,despite amendments to the CrPC which specify that they must be released if they have spent more than half the term of the offence in custody. Neither the courts nor the executive can ignore the fact that many of these undertrials are in jail because they lack knowledge about their legal rights or access to legal aid,and because of a leaden-footed judicial process.

The court is meant to use its discretion with bail,and too often,it is denied to both the poor and the influential,for different reasons. This,despite the fact that granting bail on the presumption of “innocent until proven guilty” is often cited as a jurisprudential principle,and despite the Supreme Court’s clear guidelines that the judge must factor in the gravity of the crime,previous convictions,the likelihood that evidence will be tampered with,and the risk of flight,while making the decision. The petition requested the use of other options,like plea bargaining or probation,instead of putting people in jail in the first instance that they are accused of a petty crime — a reasonable suggestion. As it considers the case,the Supreme Court must acknowledge the imperative to ensure maximal adherence to the principle of “bail,not jail”.

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