By Guneet Kaur,

“There is little reason to cheer about, regarding Supreme Court’s recent order on the implementation of Section 436A CrPC, for undertrials in India’s most crowded jails.”

Prolonged incarceration of under-trials is one of the most reprehensible aspects of our democracy. It goes against the foundational principles of any criminal justice system, which is that one is innocent until proven guilty. In 2005, Sec. 436-A was inserted in the Code of Criminal Procedure. It provides that under-trials, who have already served more than half of their prison sentence, during the stage of investigation, inquiry or trial of the case and have been denied bail or have been granted bail but are unable to provide surety or bail bonds, should be released on a personal bond. In a much-celebrated recent order of the Supreme Court of India in Bhim Singh v. Union of India, the court passed strictures for proper implementation of the above-mentioned law. However, for the many under-trials languishing in the jails of Chhattisgarh, which has country’s most over-crowded jails for the past five years, the Supreme Court order offers little hope.

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Days after the order was passed, the DG (home guards and prisons) in Chhattisgarh made a statement that none of the prisoners in Chhattisgarh Jails are eligible for release under the new Supreme Court order (Times of India, Sept. 6th, 2014). Similar statements have been made by sources in prison departments in Kerala (New Indian Express, Sept. 6th, 2014) and by DIG (Prisons) in Karnataka, wherein according to the DIG’s statement out of around 9000 under-trial prisoners only ten prisoners in the state are eligible (The Hindu, Sept. 6th, 2014). Amnesty International India that started the campaign on 436-A in Karnataka believes that the jail authorities do not know how to compute the information regarding duration of arrest and the maximum sentence. This has also been the experience of the Jagdalpur Legal Aid Group when it filed RTIs to get information from the jail authorities regarding prisoners who were eligible for release under 436-A of Cr.P.C. in Chhattisgarh. The replies simply contained a list of names, which according to jail officials were the best estimates of prisoners who might be eligible under 436 A but they were clueless about calculating the maximum sentences for different under-trials. Jails only get information on charges when the prisoner is admitted into jail, based on the FIR, but they seldom see a copy of the charge sheet, and never ever get a copy of the charges after the courts have framed them. In our rough estimate, jails have inaccurate information regarding final charges in about 50% of the cases, making any reasonable computation of 436A impossible. Even when final charges are correctly mentioned, the relevant sub-sections will be missing from both the jail and court records. For instance, one of the most commonly applied provision in Bastar Division is S. 25 of the Arms Act for which, punishment ranges from 6 months to life imprisonment depending on the sub-section applied. Lack of specification of the relevant sub-section makes it impossible to compute the eligibility of under-trials under 436 A.

In the Bhim Singh case, the SC directed jurisdictional magistrates, CJMs and Sessions Judges to hold sittings once a week for two months in the Jail and identify eligible under-trials. The judge should pass the order in the jail itself for immediate release of the under-trial. It is important for the effective implementation of the order that the judges should make an independent assessment and not rely on recommendations that are based on data computed by jail authorities in various states. Further, for future purposes, courts should be directed to submit information to the jails after calculating half the term when charges are framed. Otherwise, 436 A will continue to be ineffective.

But even if effective implementation is ensured, 436-A by its nature itself is inapplicable to majority of the under-trials lodged in jails in Bastar. Most of the under-trials lodged in jails in Bastar division have been charged under serious offences to which the section does not apply such as S.302 and S.307 of Indian Penal Code and under the Arms Act. The over-crowding in the jails here ranges from 250% to 600%. In some jails, the situation is so acute that the under-trials sleep in shifts because of lack of space. However, if we look at the acquittal rate, it has ranged from 94% to 99% between 2005 and 2012. So while almost all the under-trials eventually get acquitted, they end up spending a substantial amount of time under filthy, inhumane conditions of overcrowding in jail. Bails, which should be ideally awarded as matter of right to under-trials, are a rare exception in courts in Bastar. Trials move at a slow pace due to non-appearance of witnesses, and unavailability of forces to escort the under-trial for hearings.

Recently, a petition in this regard, filed by an NGO- Fight for Human Rights, came before the Supreme Court. The petition highlighted that about 31000 under-trial tribals were languishing in the jails of naxal-affected states for a long period of time without any trial. The court has issued notices to the concerned states, including Chhattisgarh, in this regard. A petition regarding the deplorable conditions of jails in Chhattisgarh as a result of overcrowding is also pending in the Bilaspur High Court. The Nirmala Buch committee, which was set-up by the Chhattisgarh government to look into cases of a large number of tribals and others, who have been in jail for a long time, against whom, investigation or prosecution is pending, has also been largely ineffective. The committee, firstly, in only concerning itself with cases where prosecution is pending, and so far has not taken any action in cases of shoddy investigation – which is the main reason for incarceration of a large number of adivasis under false charges. Second, it has chosen to limit its mandate to only cases of those with extremely bad medical condition and really aged under-trials, as recommended to them by jail authorities without the committee members themselves going into the legal standing of these cases. Thirdly even in these cases it limits its recommendations to non-opposition of bails by the prosecution, which has little to nil bearing on the decisions of the presiding judges.

Incarceration of such a huge number of under trials for long periods of time creates a massive financial burden on a conflict-affected state, which, can be avoided if rule of law is properly applied. Bastar is one of the most impoverished areas in India. Prolonged incarceration of earning members as well as the expenses of a trial that is unnecessarily stretched for a long period of time, completely erodes financial resources of affected families.

For justice to be done to under-trials who are languishing in India’s most crowded jails, there is a need for the judiciary and executive to work together to set up a special review mechanism for cases of adviasis in Bastar Jails. There is also a need for a proper law of reparations and rehabilitation of people falsely implicated in these zones. Further, efforts to train judges and investigating agencies should be made considering the special needs to uphold rule of law in a conflict zone.

Guneet Kaur is a law graduate from Hidayatullah National Law University, Chhattisgarh. Presently she is working as a Legal research fellow with the Jagdalpur Legal Aid Group (JagLAG). The JagLAG is an initiative undertaken to work towards facilitating the entitlements recognized under the Indian Constitution and strive towards the establishment of a legal system on the basis of equal opportunity for all residents of Chhattisgarh, irrespective of their social, economic or any other disability. Email: [email protected]

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