Addressing the Law Day event at the Supreme Court on November 26 President Droupadi Murmu raised the issue of the plight of a large number of undertrials holed up in the prisons of India, particularly in Odisha and Jharkhand. The latest official NCRB statistics indicate that over the last 10 years, the number of undertrials in jails has risen constantly and peaked in 2021. The most alarming still is the condition of countless poor and resourceless who continue to be disproportionately arrested, routinely remanded to judicial custody in prisons, face long-winding trials and are unable to seek and secure bail either because of lack of economic resources or because of fear of the social stigma outside.
The sad predicament of long and indefinitely detained undertrials was brought to light earlier thanks to public-spirited PILs before the Supreme Court in the late 1970s and early 1980s in the series of “Hussainara Khatoon” petitions, leading to amendments in the code of criminal procedure and the current court practices. However, to address some very pertinent worries aired by the kind-hearted President, the reasons for the current condition must be examined.
Despite every new government making tall promises about decriminalisation, at the ground level, most of the old and colonial penal statutes continue to rule the roost. The Penal Code of 1860 is a classic example and offences such as Section 124A (sedition), Section 186 (obstructing public servant in discharge of his public function), Section 188 (disobedience to an order lawfully promulgated by a public servant, if such disobedience causes obstruction, annoyance or injury to persons lawfully employed) are its representative samples. Likewise, there exist many other postcolonial statutes that are designed mainly to control and repress behaviours that are an outcome of social and economic tensions that may be better addressed through non-punitive measures. Currently, the process of criminal law reform is underway and the Draft IPC and CrPC reform proposals are being actively considered by the central government. We can hope the law will be able to soon rid itself of the colonial legacy.
Second, the extensive powers to arrest are yet another offshoot of a colonial procedural scheme that is often adopted today as a sine qua non of good governance. As a sequel to such dominant thinking despite the significant legislative reforms of the power to arrest in 2009 and 2010 and their creative endorsements by the Supreme Court in Arnesh Kumar (2014), the limitations and rationalisations have failed to achieve their purpose, by and large. The incidence of arrest has continued to rise and the grounds for arrest have been as bizarre as before. For example, in 2020 during the sudden promulgation of the lockdown, the migrant’s homeward march in large numbers was treated often as an offence under Section 188 “as disobedience to an order lawfully promulgated”. In Tamil Nadu alone, more than 3 lakh homeward marchers were arrested and put in jails and improvised custodial centres till the Supreme Court took suo moto cognisance of the Marchers’ Petitions and passed an order for their release on June 9, 2020. This was possible because the police appear to have relied upon the First Schedule to CrPC that continues to list section 188 offences as cognisable. The story of indiscriminate arrest continues even thereafter. A recent report found that between 2011-2021 as many as 5, 202 alleged “militants” were arrested in Assam, out of which only 2,606 have been chargesheeted and only one convicted so far (IE, November 26).
Third, the arrestee’s right to bail is a safety valve that ensures the arrested person a hearing before a judicial agency that goes into the justifications of the executive action. But the prevailing criminal justice system – which assumes every arrestee to be aware and able to, first, seek bail before the appropriate court, and second, satisfy the conditions for its grant — is more mythical than real. As a consequence for a majority of arrestees, “jail and not bail” becomes the rule leading to fresh under-trials to the already overcrowded prisons.
This condition is further compounded by the bail court’s feigning ignorance of the statutory presumption of special right to bail in favour of the “indigent” arrestees under section 436(1)(b) proviso introduced in 2005 and the Supreme court ruling in Moti Ram Vs. State of M.P. (1978) that recognised personal bond in lieu of surety bail. Thus, the reality of the operations of the right to bail is that even for those arrestees who are in a position to seek bail and satisfy the conditions, the primary courts show a reluctance in matters of grant of bail. As a consequence, the bail seekers throng the appellate courts and the high courts of metro cities face huge pendency in bail matters. Even in the Supreme Court, there is a long pendency in the disposal of bail matters, which has led the full bench of the SC to decide on November 17 that before taking up the regular matters, each of the thirteen benches will first dispose off 10 bail matters every day.
It is heartening that in response to the President’s noble call on November 29, a two-judge bench of the SC comprising Justice Sanjay Kishan Kaul and Justice Abhay S Oka in Sonadhar Vs. State of Chattisgarh, where a large number of undertrials continued to languish in prisons because of their inability to fulfil the bail conditions even after securing bail, has passed this order: “Each jail authority would be required to convey to the State Government the data in this behalf and the State Government would then have to send it to NALSA so that a scheme can be worked out. Assistance would have to be provided seeking verification of the terms of bail in such cases.”
In late the 1990s, thanks to the Delhi University Legal Aid Clinic’s extension to the Prisoner’s Legal Services, we got the unique opportunity to secure the expeditious release of undertrial prisoners through the Prison Lok Adalat. The law student volunteers would visit the Tihar Prison on appointed days and select the fit cases of petty-offence undertrials, who have been in the prison for a considerable period and explain to them that their confession of guilt would lead to their expeditious release, almost instantly. A majority of the poor and resourceless undertrials agreed to a bargained acquittal. As legal service volunteers, we realised the ethical shortfall of such bargained acceptance of guilt, but to mitigate the rigours of a legal conviction, our team insisted on a larger number of releases under the Probation of Offenders Act, 1958 that would treat the release not as a conviction for the purposes of the police record. Our Lok Adalat release services got a rude shock in handling the case of a cycle theft undertrial who had languished in prison for over two years. He said categorically that he had not committed the offence, therefore, he would not confess the guilt, but insisted on being presented before the Lok Adalat. The student volunteers read his life more closely to put his point of view before the Lok Adalat Magistrate. On being asked by the magistrate that the set-off release is only for those who accept the accusation, he reluctantly revealed the true reason: “My only son is critically ill, I want to be released before he dies. The regular trial and acquittal will take a long time, I am told”. That was the only case in which the Lok Adalat passed a release order without conviction.
The President is right to raise the issue of poor and resource-less undertrial prisoners. They are victims of multiple failings that start with inappropriate criminalisation, followed by indiscriminate arrests, weak bail entitlements and inadequate summary disposals through Lok Adalats. The need is for a holistic legislative reform that aims to expand the horizons of individual liberties.
The writer is former professor of Law, Delhi University