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Let me begin at the very beginning by first and foremost pointing out that the Supreme Court in the landmark case titled Dataram Singh v State of Uttar Pradesh & Anr dated February 6, 2018 held clearly, convincingly and categorically that, 'It is unfortunate that the prisons are overcrowded. Prisoners also have human rights and they cannot be kept in jail like animals.' This sharp observation came from the top court after it was informed that many of the over 1,300 prisons across the country were overcrowded, even to the extent of more than 600 percent which is most shocking! Prisoners too are human beings and when they have done some crime, they must be put behind bars as they are done also but let's not forget that there too they have to be treated like human beings and not like animals!

To be sure, the top court minced no words in stating unambiguously that, 'What's the point in talking about prison reforms when we cannot keep them in jail. We should release them, if you cannot keep them properly.' The top court said this while lambasting state governments and union territories (UTs) for 'complete lack of commitment' to fix this 'extremely unfortunate' situation. A Bench of Justices MB Lokur and Deepak Gupta also warned the Directors General of Police (Prisons) of all states and UTs of contempt notice for non-compliance of its earlier orders with regard to submitting a plan of action to deal with issue of overcrowding prisons.

To put things in perspective, the Apex Court said that it was informed by amicus curiae that there were a large number of jails where 'overcrowding is well above 150 percent and in one case it is as high as 609 percent.' It also held that, 'This is extremely unfortunate and clearly suggests the complete lack of commitment of the State Governments and the Union Territories to the human rights of prisoners and also indicated the failure of the Under Trial Review Committees to take their responsibilities seriously.' This is clearly a rap on the knuckles of the State Governments and the Union Territories which should be enough to shake them out of the deep slumber that they have immersed themselves in which ultimately culminated in their painting themselves into a tight corner!

It is noteworthy that the Apex Court clearly brought out that while some jail inmates have got bail but cannot be released as they cannot furnish sureties, some others were imprisoned for petty offences under which they under which they should have got bail long ago. But what an unbeatable irony that they had to spend so much extra time in jail just because they were unable to furnish sureties or were incapable for getting bail arranged and even for petty offences had to spend much extra time in prison for no fault of theirs! This should never have been allowed to happen at the first instance but yet it happened as proper steps were not taken to secure the release of undertrial prisoners.

While craving for the exclusive indulgence of my esteemed readers, let me inform them that under Trial Review Committees (UTRCs), the Bench said that this was quite apparent from the fact that 'unrestricted overcrowding in jail continues and in some instances, it has escalated.' The Committee, set up in every district, deliberates and recommends the release of undertrial prisoners and convicts who have undergone their sentences or are entitled to be released from jail on bail or remission granted to them. It directed the States and Union Territories to give their commentsin two weekson Standard Operating Procedures for the UTRCs, prepared in consultation with National Legal Service Authority (NALSA), so that they can work 'effectively and efficiently'.

For my esteemed readers exclusive indulgence, let me also inform them that the Apex Court also clarified that if the comments of States and Union Territories are not receivedin two weeks, then it will be assumed that they have nothing to offer and Standard Operating Procedures (SOPs) will be finalized and circulated for compliance. The Apex Court had, through orders of May 6, 2016 and October 3, 2016, directed preparation of a plan of action by States and Union Territories to deal with the issue of overcrowding in prisons. Also, the proposal was directed by the Apex Court to be submitted by March 31, 2017, but not even one of them gave it.

It needs no rocket scientist to conclude that this immensely infuriated the Apex Court which then firmly directed that, 'We give a direction to all the State Governments and Union Territories to comply with our orders dated May 6, 2016 and October 3, 2016 within a period of two weeks, failing which we may have to issue notice of contempt against the Director General of Police (Prisons) of the State Governments/UTs, which unfortunate step we would like to avoid. But if the information is not providedwithin two weekswe will be compelled to issue such notices.' Why did the State Governments and Union territories not comply with what the Supreme Court had directed? Why did they derelict from doing their job properly? They have a lot of explaining to do!

To say the least, it is high time and even if they now fail to act then the Apex Court will be left with no option but to issue such notice as it has said which has been explained in the above para. The Apex Court also after perusing the status report of National Legal Services Authority (NALSA) also voiced its concern over vacancies in the prison staff and directed the DGPs (Prisons) to specify 'clearly and unequivocally' the steps taken to fill up the vacancies and progress madein two weeks. Elaborating further, the Apex Court further said that, 'The combined sanctioned strength of prisons staff in all the prisons in the country is 77,230 out of which there are 24,588 vacancies as on December 31, 2017. Therefore, it is quite clear that there is slightly more than 30 percent vacancies in the prisons staff.'

Interestingly enough, with regard to open jails, the Apex Court was informed that the draft 'Administration of Open Jails Act and Rules' will be finalized byApril 30, 2018. Semi-open prisons or open prisons allow convicts to work outside the jail premises and earn a livelihood and return in the evening. The concept was brought in to assimilate the convicts with the society and reduce their psychological pressure as they faced lack of confidence in leading normal lives outside. It is certainly a very good and laudable initiative which will go a long way in reducing the overcrowding of prisons and also enable the hapless convicts to once again come in the mainstream by not cutting them totally from the society and giving them a chance to reform themselves!

As things stand, the Bench of the Apex Court comprising of Justices Madan B Lokur and Deepak Gupta have posted the matter for further hearing onMay 8. The Apex Court had onFebruary 21asked the NALSA to look into the issue of overcrowding of prisons and furnish figures before it regarding the population in the jails where occupancy was over 150 percent as on December 31, 2017. It has to be borne in mind that the top court is hearing a matter relating to inhuman conditions prevailing in 1,382 prisons across the country.

Sure enough, the Bench asked the governments of Andhra Pradesh, Maharashtra, Tamil Nadu, West Bengal, Punjab, Delhi, Goa, Madhya Pradesh, Assam and Bihar to respond to amicus curiae Gaurav Agrawal's query pertaining to rights, including solitary confinement, legal representation and consultation with family members of prisoners who have been awarded death penalty. Also, Agarwal said his query on vacancy was met with a routine answer that filling the posts was under process without indicating the stage of the process. The court was informed that some sort of standard operating procedures for undertrial review committees were prepared in consultation with NALSA and 18 States/UTs had provided their comments.

Simply put, the Bench rightly underscored that, 'A humane attitude is required to be adopted by a judge while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody'. Emphasising on the necessity of ‘introspection', while denying bail to an accused, the Supreme Court has granted bail to an accused observing that if the investigating officer does not find it necessary to arrest an accused during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed.

To put it shortly, the Apex Court said that some of the basic principles of criminal jurisprudence like presumption of innocence, appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods.This is what is most responsible for ensuring that more and more persons are sent to rot in jails due to which there is so much overcrowding of prisons but there is total apathy among the State Governments and Union Territories in dealing with it most swiftly and effectively! The top court further added that, 'This does not do any good to our criminal jurisprudence or to our society…Occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.'

Not stopping here, the top court also said that the following factors must be kept in mind while deciding bail applications: -

  1. Whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses.
  2. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed.
  3. Whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer.
  4. If an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case.
  5. Whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct.
  6. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of criminal Procedure, 1973.

The Bench further observed that, 'A humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems.'

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