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The Salman Exception

For most undertrials, it’s years in jail with no access to quality legal aid.

Written by Durga Nandini | Updated: May 22, 2015 9:50 am
salman khan, salman khan hit and run case, hit and run case, actor salman khan, indian courts, amnesty international, amnesty international india, IE column As a convict, Salman Khan has managed to avoid jail so far, securing two bail orders in three days.

By Nusrat Khan

Two significant events relevant to the issue of undertrials have occurred in the past few weeks. The first was a Supreme Court order drawing attention to the plight of 2.78 lakh undertrials in Indian jails. The second was the conviction of and subsequent bail for Salman Khan in a hit and run case.

As an undertrial, Khan spent about a week in judicial custody over 13 years. As a convict, he has managed to avoid jail so far, securing two bail orders in three days. Contrast that to the lives of nearly three lakh undertrials, whose guilt, unlike Khan’s, remains unestablished. But they are behind bars, fighting poverty and disease, facing social stigma and loss of employment. Some may have completed more than the maximum sentence they would face if convicted. Last year, Amnesty International India worked on the case of Shankar (name changed), charged with stealing a motorbike, an offence with a maximum punishment of three years. Shankar spent two years, nine months as an undertrial in Mysore Central Prison, even though he was entitled to release on bail or personal bond after a year and a half, under Section 436A of the CrPC, simply because he didn’t have any legal advice.

According to NCRB data, as of December 2013, over 67 per cent of the inmates of Indian jails were undertrials. Over 62 per cent of undertrials had been detained for more than three months. Over 23 per cent had spent between one and five years in judicial custody. Access to timely, quality legal aid, guaranteed by the Constitution and international law, could have produced the relief granted to Khan. Poor awareness of rights and flawed prison record management also contribute to excessive pre-trial detention. These factors were addressed by the SC in its April 24 order. Cognisant of the “high percentage and number” of undertrials in Indian jails, it sought to identify and set free those eligible for release. To this effect, it issued some directions, three of which are significant.

First, the SC directed the home ministry to review the “Prison Management System” in Tihar jail. This is the first time the court has directed a review of Tihar’s software, lauded by government authorities as the model solution to the challenge of realising undertrials’ rights. This order will have significant consequences as many states have adopted the Tihar software, designed by the National Informatics Centre (NIC). Over the last four months, Amnesty International India visited four jails in Karnataka to review the implementation of this software. Three problems stood out. There were flaws in design. Currently, the NIC software appears to generate three different numbers for each new inmate. This leads to confusion and inaccuracies in calculating an undertrial’s total period of detention.

There should be a single identification number for each undertrial. The authorities also depend on jail staff to manually key in prisoner data, including the charges and maximum sentences for offences. It must be replaced by a system that automatically determines when an undertrial is eligible for release and issues an alert. Finally, jail staff currently operating the software are not adequately trained, leading to errors in case documentation.

Second, the SC clarifies how Section 436A must be interpreted. It states that when an undertrial is charged with multiple offences, she is eligible for release under this section “after half the sentence of the lesser offence is completed”. Currently, the “greater” offence is considered, if at all. Given that undertrials are typically charged with multiple offences, the court’s progressive reading of the law is likely to have a positive impact.

Finally, the court expressed shock at the number of undertrials “who are unable to furnish bail and are still in custody for that reason”. Directing state legal service authorities to act immediately on these cases, the court held that “poverty cannot be a ground for incarcerating a person”. Both the speedy bail granted to Salman Khan and the SC order highlight the inequities in our criminal justice system. Until this is recognised and challenged, justice and equality will elude us.

(The writer is a researcher with Amnesty International India)

(Correction: The article earlier erroneously attributed the author as Durga Nandini in the print version. The correction has been made online.)

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  1. M
    mohit kumar
    May 22, 2015 at 3:53 pm
    . The dichotomy of service delivery for the two cles of people- one , the elite and other, the common man is truly significant in the Indian judicial system and reflects the inequities in the criminal justice system. The large chunk of people in the Indian jails is under-trials and their serving of sentences before they are even awarded the sentence speaks volumes of our system. It’s high time that prison reforms take place and all the glitches and grave concerns are done away with. Prisons are supposed to be reformative in nature and the existing scenario don’t resonate this idea. The legal literacy along with use of ICT in prison record management systems have to be incorporated at the earliest. The other issues of doing away with manual updation of records along with training of the staff needs to be there to address the lacunae. There is urgent need as SC has also observed the financial barrier must not come in the way of legal services. Sadly, majority of the undertrials are languishing in the jails due to this barrier only. The unsung undertrials need to be given some credible voice so that the system becomes democratic and equitable in nature for always.
    1. N
      Narendra M
      May 22, 2015 at 9:25 am
      The Supreme Court can hardly bring about a change in the mindset of our bureaucracy and politicians. There is of course rule by law whenever it suits both the bureaucracy and their political m,asters. But here again most laws are for protection of those who are having money/political power. The poor and underprivileged have to suffer always at the hands of police and without proper and affordable legal aid, there can be hardly any change in the current scenario.
      1. S
        May 22, 2015 at 11:54 pm
        Remember the Kanchi Shakaracharya Case? The Central Government is just beginning to acknowledge the Judiciary is hostage and incapable of objective, independent jurisprudence. This is primarily because the judiciary has, in the decades of "social engineering" and politically convenient verdicts lost sight of the law and principles of jurisprudence. It is also in the nature of India's criminal Governance, from the Committees of Clubs, to District Forest Officers, to every cog in India's wheel to abuse power and deny rights to citizens through using the Indian "Judicial" System. This is furthered to a great deal by the incompetence, corruption and ponderous arrogance of the judicial system and because the abusers of power utilize the resources and money that belongs to others to abuse the juridical system and oppress their innocent victims. There is no accountability. None at all. The judiciary have been enabled to be unaccountable to notions of law, equity and fair play by the executive and superior courts through social engineering appointments and immunity from impeachment among other things and by the Consution that has enshrined exceptions to both the Rule of Law and Equality under law in the Indian Consution. Apart from eroding competence and integrity, the resultant culture has bred insouciance and arbitrariness of a very high order. The deleterious effect of this on the National character has been as extreme as the corrosion of education for political convenience. Today the Courts are defenders of the four important principles of any Banana Republic, "Just because you did it does not mean you are criminal", "Just because the statute book says so, does not make your actions a crime", "Evidence lies in the perception of the judge", and "Just because you did not do it, does not mean you are innocent".