UNDERTRIALS WILL FINALLY TASTE FREEDOM

On January 26, in one of those nice moves that we encounter on Independence and Republic Days, the Government launched a programme to release about 2,00,000 undertrials from jails across the country. Two lakh undertrials, you gasp? Actually, we have about 3,00,000 of them locked in jail. Union law Minister Veerappa Moily has declared that two-thirds of all undertrials will be released in six months — that is by July 31. Hundreds were released on Republic Day, launching this laudable process of reducing injustice delivery.

 

The process is simple. Undertrials who have spent more than half of the maximum prison time they could have been sentenced to if convicted would be released, if necessary on bail or on a personal bond. This would not apply to grave offences like murder or rape, and would not apply to those in preventive custody. It would be for those accused of minor offences who make up the bulk of undertrials. The security of the nation, or of you and me, would not be affected.

 

In fact, our security may be enhanced, because this would decongest jails and help bring criminal justice back on track. Right now, our jails are stuffed primarily with people who are innocent in the eyes of the law. About 70 per cent of those in jail are undertrials, only 30 per cent are convicted prisoners. India has one of the worst prison situations in the world — perhaps the worst in a respectable democracy — where appalling overcrowding leads to horrifying human rights abuses and lack of basic prison amenities, including sleeping space.

 

Forcing an accused, who may be innocent and is presumed to be innocent until convicted, to undergo the horrors of a protracted jail sentence undermines the law and often turns innocents into criminals. It is a serious human rights abuse, and for decades India has been trying to clear up its backlog of undertrials.
Back in 1977, the Law Commission had taken up their cause when the respected legal activist Shanti Bhushan was law minister, submitting its recommendations in 1979. More than 30 years later, the number of undertrials has tripled, their condition worsened and we are still floundering.

 

But committed human rights lawyers and activists keep the issue afloat. In 1996, the Supreme Court's judgement on the Common Cause petition had ordered that undertrials booked for minor offences that attract a maximum jail term of up to seven years be freed if they had been incarcerated for more than six months or a year, depending on the length of prison time they could be sentenced to. The Supreme Court directed the high courts to implement the order through criminal courts. Nothing moved. Undertrials remained locked up for years, prisons got more congested by the day.

 

A decade later, Parliament passed the Criminal Procedure Code (Amendment) Act, 2005, which came into effect in 2006. This introduced Section 436A which entitled an undertrial to be released with or without sureties if he had been detained for more than half the period of imprisonment that he could be sentenced to. Those accused of an offence which could attract the death penalty did not qualify for this. Again, nothing much happened.

 

But now we have the prime minister, the law minister and the Chief Justice of India backing this move. Hopefully, this time the political will to free undertrials will win over the lethargy of the criminal justice system and the corruption and laziness of the administration.

 

Besides, now that the jails are bursting with legally innocent people (perhaps lakhs of them genuinely innocent) and there is hardly any space for convicted criminals, the government may be forced to urgently decongest jails. Demands of logistics could deliver results where the demands of justice or humanity failed.
Anyway, let's not be cynical. This is a splendid move by the law ministry. Let's hope it works this time.