President Draupadi Murmu’s call to the government and the judiciary to address the issue of overcrowding of prisons is significant and a very welcome intervention. “I hear these days that we will have to make new prisons because prisons are overcrowded. If we are moving towards progress as a society, then why do we need new jails. We should be closing down existing ones,” President Murmu said Saturday at the National Law Day celebrations organised by the Supreme Court. “I am leaving this issue to the judges here and the law minister. I am not saying anything more. I hope you understand what I have said and what I refrained from saying,” she added. President Murmu’s remark comes in the backdrop of the sharp exchange on this issue last week between Union law minister Kiren Rijiju and the Chief Justice of India D Y Chandrachud. Rijiju had made a case against the higher judiciary’s intervention in granting bail and said only trial courts ought to decide granting of bails. In response, the CJI said that higher courts are flooded with bail cases because of a “sense of fear” in the lower judiciary.
The crisis at hand is this: According to the Prison Statistics India 2021, a report published by the Ministry of Home Affairs, between 2016-2021, the number of convicts in jails have decreased by 9.5 per cent whereas the number of undertrial inmates has increased by 45.8 per cent. With three out of four prisoners being undertrials, the problem of overcrowding of prisons is essentially an undertrial issue. As of December 31, 2021, around 80 per cent of prisoners were confined for periods up to a year. The report states that an overwhelming 95 per cent of undertrials released in 2021 were granted bail by courts while a mere 1.6 per cent were released on acquittal by court. It shows that the sluggish pace at which trial courts work to reach a final decision cannot keep up with the increasing number of undertrials.
The Dickensian idea of building more prisons is not the solution, as President Murmu rightly said. The Supreme Court recently asked the government to think “out of the box” and consider a one-time measure to release prisoners in certain cases on the occasion of the 75th year of Independence. While it is imperative for the top court to ensure that its liberal stance on bail percolates to the trial courts, it is also disingenuous to characterise the undertrial crisis as a mere bail issue. The real solution lies in tackling the cause, which is indiscriminate arrest of individuals. From bringing special criminal legislations as populist measures to opposing bail as part of a tougher stance on crime, there are several issues for the government to address. Identifying those who cannot afford bail, even when available, is also crucial. The lawmakers too must urgently respond to this crisis.