By Justice Kamaljit Singh Garewal
My hair is grey, but not with years,
Nor grew it white
In a single night,
As men’s have grown from sudden fears:
My limbs are bow’d, though not with toil,
But rusted with a vile repose,
For they have been a dungeon’s spoil,
And mine has been the fate of those
To whom the goodly earth and air
Are bann’d, and barr’d—forbidden fare
—from “Prisoner of Chillon” by Lord Byron, 1816
Our gulag-like system of criminal justice makes thinking men squirm, while the poor sods wait endlessly for trial as they tread through the long, labyrinthine, tortuous corridors of an overcrowded prison system.
A growing prison population may be a good sign because it shows undertrials are getting convicted and sentenced. But unfortunately, the prison population of undertrials is disproportionately high, and rising. This must be seen as increased incarceration of those whom the law presumes innocent. This is not a sign of a healthy criminal justice system. Rather it shows denial of the constitutional promise of right to life and liberty, to which the right to a quick trial is integral.
Over the past two decades, the proportion of undertrials in prisons has been a constant 70% and above. A national shame for which no one institution can be blamed. But if this anomaly is examined in detail, one shall discover that it is a systemic failure of the entire criminal justice system of India. Undertrials in custody must be convicted quickly or released on bail or finally released when the prosecution fails to prove their guilt.
But the old fashioned conservative, neo-colonial reply is—Why did the wretch break the law? He deserves what he has got. If nothing is done soon to cure the malady, it shall be seen as our national policy too. But the liberal, constitutional principle says to the prisoner: “You are presumed to be innocent, your right for a quick trial is secure, the State shall soon present the evidence before the court and prove the offence committed by you, you shall have full opportunity to defend yourself”
Who is answerable for long detention of persons who are ultimately acquitted by the trial court after long, protracted trials? Too little has been done when so much concern has been shown by the managers of the criminal justice system, of which the prison is the last destination. And when we say the “law shall take its course”, don’t we know that it is a long, bumpy, winding course to nowhere?
President Droupadi Murmu, as the First Citizen, expressed her serious concern over the large number of undertrials in prisons for long periods. She was delivering the valedictory address at the Constitution Day function organised by the Supreme Court. She may as well have said what the guard remarked in Shakespeare’s Hamlet after the ghost of the dead king appeared walking over the palace walls—“Something is rotten in the State of Denmark.”
The president directly addressed the Judiciary and indirectly reached out to the thousands of judges of criminal courts in this vast country. President Murmu described her own experiences as the Chair of Home Standing Committee in Orissa, which gave her the opportunity to visit jails in her state and see the conditions of people incarcerated there. She said she gave suggestions to the authorities, but only a few were implemented.
As governor of Jharkhand, she also felt very concerned about those in jails, many of whom had been there for 10, 15, 20 years for small crimes. She felt that something must be done for them. Most did not know their fundamental rights or fundamental duties. The prisoners had been in jail for long years, waiting for trials to decide their guilt or innocence in cases of minor offences. Many didn’t want to leave jail because they felt ashamed of the stigma that would stick to them on release. Many families wouldn’t get them released because they didn’t have the means. Something had to be done about the small people in prison who were inside for long years for minor disputes. The president very correctly did not castigate the system, but said that everyone in the audience understood what she meant to say. This remark was followed by long applause.
In a frank, polite and humble way, the president wanted action for the small people and was surprised that more jails were being constructed, whereas the need actually was to empty them of inmates. The lines of Lord Byron quoted before are exactly the sentiments expressed by President Murmu. She seemed to be saying that undertrials wanted action, not hollow words and meaningless platitudes.
So where should the action come from? The prime minister has too much to look after, from navigating foreign policy through stormy seas of international conflict in Europe, assuming presidentship of G-20 countries, facing disputes with neighbouring countries, guiding economic policies, trying to improve relations with other regions…. His office is staffed with experienced administrators, diplomats, economists and police officers. There is too much work to spare the time to care about the plight of ordinary people in prison awaiting trial.
The home minister is no less busy, tackling internal security, external threats, terrorism and much else. It is the home ministers of states who really matter as far as the poor sods are concerned, criminal law and procedure being concurrent subjects. Often, the state home department is also the responsibility of justice ministers of states.
Now coming to the minister for law and justice of India who holds the most important portfolio concerning criminal justice. It seems he too has little time because appointments of judges keep him too busy. The minister must ponder over our collapsing system from the point of view of the victims. The victims are the complainants and the accused persons. The minister must work towards reform of the system to ensure due compensation to the complainants, to reduce the time taken in criminal trials, to reduce the number of undertrials in jails and to increase the rates of convictions. The minister should place on the floor of the Lok Sabha a quarterly or annual statement on the performance of the justice system, particularly the criminal justice system. And what his proposals are to reduce the undertrial population and increase conviction rates for different types of criminal cases.
As a nation, we must shed our ostrich-like attitude towards undertrials and look at the damage their long stay in prison does to them if they are ultimately acquitted. Many lose their jobs and savings, have to dispose of property, families have to live under the shadow of a member in jail, children may be teased at school and lose interest in studies and teenage children may become delinquent.
A good way ahead would be to have a full time state criminal justice monitoring board under the aegis of the State and District Legal Services Authorities, but as a separate well staffed entity. The task assigned to the monitoring boards can be to keep a detailed track of the progress of criminal cases. Criminal trials take long because the prosecution takes too long to lead evidence. There are clearly defined timelines in the code of criminal procedure for various steps. For example, every arrested person must be produced before a magistrate within 24 hours. In this way, the moment a person is detained and denied liberty, he comes under judicial protection. After this, the criminal procedure code kicks in. The investigation must be completed and the final report filed within 90 days, failing which the arrested accused is released on bail. Trials once commenced must continue on a day-to-day basis. This is what Section 309 of the CrPC requires. There is no answer why this never ever happens. There is also no answer why no one steps in to make prosecutors accountable for such monumental lapses.
The monitoring board shall be able to monitor the day-to-day progress of each and every trial. This would be enough to make trials courts follow the law. Another major reform to block the harmful effect of prisons on undertrials would be to completely separate convicts from undertrials. The former to be kept in correctional institutions and the latter in detention centres. Undertrials must be convicted before being sent to prisons. During trials, they should be kept in special detention centres within the court premises and under the superintendence and control of the sessions judges and away from hardened criminals.
Holding Lok Adalats in jails for petty offences, releasing persons against whom investigators find no evidence, immediate release of women on personal bond, improving the quality of legal aid to accused are some of the other measures which must be introduced across the country to ameliorate the hardships of indigent accused.
In spite of the many safeguards which ensure quick trials, the due course that the law takes is long. As a nation, we lack the will and determination to put things right. And the blame must be placed at the door of the weak prosecution system dominated by unprincipled police. The former be strengthened, while the latter must be curbed and made accountable. If effective steps are taken in the above direction, trials shall conclude quickly and conviction rates will shoot up. Otherwise, it will be business as usual, while the undertrials continue to languish in prisons for years.
—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York