Last year, on the occasion of the Constitution Day celebrations, Droupadi Murmu, the President of India, gave a heartfelt speech on prisoners languishing in jails. She vividly recollected her own experiences and initiatives as a legislator and then Governor of Jharkhand to make legal aid available to the inmates.
The concerns raised by the President were apt. As per the National Crime Records Bureau, a total of 5,48,469 Indian national inmates were confined in various Indian jails at the end of the year 2021. Out of these, 4,23,015 were undertrials. The Supreme Court has itself also noted that a majority of the undertrials may not even be required to be arrested just because they are accused of an offence punishable for seven years or less.
In 1978, in State of Rajasthan vs Balchand, the Supreme Court held that “Bail is the Rule and Jail is an exception.” However, the President’s comments clearly indicate that this legal position remains a mirage for a large part of population. It is ironical that even after 75 years of independence, and almost 50 years after a new Code of Criminal Procedure was enforced, we continue to grapple with a colonial mindset that anyone accused of a crime is best behind bars, though the trial or appeal is pending adjudication.
In the recent past, the Supreme Court passed a series of decisions to ensure that there are no indiscriminatory arrests or that undertrials or those languishing in jail while their appeals are pending, be released.
In Arnesh Kumar (2014), the Supreme Court laid down guidelines to be followed for arrest in dowry related complaints. The judgment was supposed to keep in check, on what was perceived as, indiscriminatory threats of arrest in dowry mattes. It was held that before arrest, the police officer should have reasons to believe that the accused has committed an offence. A police officer cannot make a arrest simply because a complaint has been made. The Court also referred to Section 41 (1) (b) of the Code and checklist to be followed before an arrest is made. If the alleged offence attracts an imprisonment of 7 years or less arrest, the police should be satisfied that arrest is necessary to (a) prevent any further offence, (b) proper investigation, (c) prevent disappearance or tampering of evidence, (d) prevent witness being threatened, (e) ensure appearance of accused before the court. The police is also required record reasons in writing for arrest of a person.
Last year, in Satinder Kumar Antil, the Supreme Court emphasised that the directions laid down in Arnesh Kumar be strictly followed in all offences where punishment is 7 years imprisonment or less. The Court also directed that an exercise be undertaken of finding out the undertrial prisoners who are not able to comply with the bail conditions. It was stated that for offences mentioned above a liberal approach be adopted in so far as bail is concerned or in imposing conditions for bail.
The courts have also passed directions for release where after conviction an appeal is not heard for a considerably long time, and a person continues to be in prison. In Sonadhar vs. State of Chhattisgarh, on 06.10.2021, the Supreme Court directed the Delhi High Court Legal Services Committee to seek bail for convicts who have undergone (a) more than half the sentence in case of fixed term sentences or (b) more than eight years of actual custody where ‘life sentence’ has been awarded. In an attempt to reduce pendency and also ensure release, the court also directed that where more than half of sentence has been completed an endeavour be made ascertain from convicts if they are willing to accept their infractions and agree to disposal of the appeals on the basis of sentence undergone. Subsequently, on 15.09.2022, the Supreme Court directed that all persons who have completed 10 years of sentence and appeal is not in proximity of hearing with no extenuating circumstances should be enlarged on bail.
On a similar line, in Rashidul Jafar @ Chota, 512 convicts undergoing a sentence of imprisonment for life had sought premature release in terms of the policy of UP government. The court directed that no application is required to be submitted and all such eligible cases be considered for premature release.
However, despite the foregoing, it is an undeniable fact that the ground reality does not reflect implementation of either the letter or spirit of the orders. The number of incarcerated people has increased over the years. In 2011, almost 22% of undertrials had been in prison for a year or more. By 2021, 29.1% of undertrials had been in prison for more than a year.
Justice Sanjay Kishan Kaul, who presided the Bench which passed judgments in Satinder Kumar Antil and Sonadhar, while speaking at a conference, in January, stated that even as of now, roughly one third of the matters being filed before the Supreme Court were bail matters. Last week, the same Judge noted that the lower courts are not following the directions passed by the apex court. It is undeniable that there is a systemic failure in implementation of the apex court judgments. The real challenge is practical application of the law and the guidelines.
The President concluded her speech by stating “jo cheez ko nahi bol rahi hoon, woh cheez ko aap samjiye.” It is this unspoken truth which needs to be addressed. The proclivity of police to arrest, of prosecutors to oppose the bail, and of magistrates and judges to deny bail on irrelevant grounds, needs to be addressed. It goes without saying that such an approach allows the three branches of the criminal justice system to be abused at the cost of the common man. It is, therefore, imperative to strengthen the legal aid to poor and needy, and have proper mechanisms to ensure that the magistrates and the investigative agencies implement the guidelines related to bail, in its letter and spirit for a proper balance between the rights of the accused and the interest of a criminal investigation.
Amit Gupta, an Oxford University and Columbia Law School graduate, specialises as Counsel/Litigator in New Delhi, with focus on white collar crime, arbitration, commercial litigation, competition law, media, and intellectual property.