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For undertrials, light at tunnel’s end, finally

The Supreme Court’s September 5 order to trial courts to free undertrials who have served in jail at least half the term of their maximum sentence in case they were to be convicted, is welcome for at least three good reasons. The first is that the directive will tackle the massive overcrowding in prisons across the country. Attorney General Mukul Rohatgi has said that as high as 60 per cent of the prisoners are undertrials. The issue has troubled both the judiciary and the executive for long. A little over a year ago, the apex court had entertained a Public Interest Litigation that sought the release of undertrials charged with offences which carried a maximum punishment of seven years behind bars. The PIL had pointed out that there were more than 2.40 lakh undertrial prisoners across the country, constituting over 64 per cent of the total prison population. Even further back in February 1979, the 78th report of the Law Commission of India — whose observations strike relevance to this date — had remarked on the issue in the following words: “Jails should primarily be meant for lodging convicts and not for housing persons under trial. The evils of contamination in jail are well known.” The congested conditions in jails have not just impinged on the basic rights of prisoners in the matter of food, clothing and healthcare, but also contributed to violent flare-ups among them and between them and the over-worked prison authorities. The fact that there are as many as 188 undertrials languishing in jails for 100 convicts, demonstrates the unacceptably high figure.

The second reason why the apex court’s directive deserves applause is that it seeks to offer justice to those undertrials who are spending time behind bars for years together not because the courts found the crimes they have been accused of as heinous enough for denial of bail, but simply because these unfortunate undertrials did not have the financial means to present a bail bond; nor did they have anyone to stand as surety for their release. In other words, while undertrials with resources managed to get free, the less fortunate, even if they had been accused of smaller crimes, remained in jail because they could not furnish the bail amount. With the apex court’s directive, the qualified undertrials can be freed if they offer a personal bond. Incidentally, the Supreme Court’s order covers all sorts of undertrials (provided they have met the criterion of having served half the maximum term the offence attracts) — from those being tried for non-bailable offences where courts have declined to pass bail order, to those being tried for similar offences but where the courts have ordered bail (and yet the undertrial couldn’t avail the benefit because of lack of surety), to undertrials who are being tried for bailable offences and given bail (but again unable to walk free because they didn’t have the bond money).

The third reason why the apex court’s order is welcome is that it will contribute to the unclogging of cases that have been piling up over the decades, leading to terribly long delays in the dispensation of justice. Data available show that four years ago, for example, trials courts began with a backlog of a whopping 27 million cases; admitted over 4,50,000 new cases and ended the year with 26 million cases. The story has not changed much since then. With a large number of undertrials being freed on personal surety, the burden on trial courts who were dealing with the claims of these undertrials on a regular basis, will reduce considerably. Of course, this alone will not speed up justice; more judges and better infrastructure to back the legal process are essential.

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