On the most recent data from the National Crime Records Bureau,and in view of World Prison Briefand the various judgements of the Supreme Court, senior lawyers tell Mohd Naushad Khan that bail, not jail, must be the invariable rule to deal with overcrowding in jails.
According to the most recent data from the National Crime Records Bureau, the Union Ministry of Home Affairs stated in the Lok Sabha that more over than 5.5 lakh prisoners are being held in Indian jails, against the capacity of 4.4 lakh prisoner capacity.
Minister of State for Home Ajay Mishra, while responding to a question from Abdul Khalique, a Congressman from Assam, said, “In its yearly publication, “Prison Statistics India,” the National Crime Records Bureau (NCRB) compiles prison statistics that have been reported to it by the States and Union Territories (UTs). The latest published report is of the year 2021.”
A total of 5,48,469 Indian national inmates consisting of 5,26,379 Males, 22,012 Females and 78 Transgenders were confined in various Indian jails at the end of the year 2021. Out of the 5,48,469 Indian national prisoners, 1,21,772 were Convicts, 4,23,015 were Undertrials and 3,432 were Detainees. Uttar Pradesh has reported the highest number of inmates (1,17,200) followed by Bihar (66,751) and Madhya Pradesh (48,485) accounting for 21.4 percent, 12.2percent, 8.8percent of the total inmates. (ncrb.gov.in)
As per the report, in the year 2019, the number of prisons was 1,351, actual capacity of prisons was 4,00,934, the number of prisoners at the end of the year was 4,81,387 and the occupancy rate was 120.1 percent.
In 2020, the number of prisons was 1,306, actual capacity of prisons was 414,033, the number of prisoners was 4,88,511 and the rate of occupancy was 118.0 percent. In 2021,the number of prisons was 1,319, actual capacity of prisons was 4,25,609, the number of prisoners was 5,54,034 and the rate of occupancy was 130.2 percent.
According to World Prison Brief, India is ranked 5th when it comes to the maximum number of prisoners. The general conditions of Indian prisons are underwhelming, to a great extent. Overcrowding, lack of sanitation and cleanliness, absence of nutritious food and improper maintenance are regular sights. Social problems like discrimination, inhumane treatment, corruption and prison politics also exist.
In November 29, 2022, the Apex Court ordered jail authorities across India to provide information to the National Legal Services Authority regarding those languishing in jails for years even after granting of bail by courts. The Supreme Court issued the order after President of India Droupadi Murmu highlighted their plight in her speech to mark the Constitution Day at the Supreme Court on November 26 last year.
As per the Press Information Bureau (PIB) press release on November 26, the President of India said, “Towards the end of her speech, the President made impromptu observations about her own experience as the Governor of Jharkhand in addressing the problems of the growing number of undertrial prisoners who were languishing in jails. She also recalled her days as a political activist in Odisha to highlight that the excessive cost of litigation was a major impediment to the delivery of justice. Appreciating instances of speedy delivery of justice, she urged the executive, judiciary, and legislature to evolve an effective dispute resolution mechanism to mitigate the people’s plight.”
“In the end, the President summed up her speech by saying that the Supreme Court has earned a reputation for its superior standards and lofty ideals. It has played its role as the interpreter of the Constitution in the most exemplary way. Landmark judgments passed by this Court have strengthened the legal and constitutional framework of our nation. She said that the Supreme Court Bench and the Bar are known for their legal scholarship. The Supreme Court has been served by judges who have provided the intellectual depth, vigour and vitality necessary to create a world-class institution. She expressed confidence that the Supreme Court would always remain the sentinel of justice,” said the press release.
On November 29, a bench of Justices Kaul and Abhay S. Oka ordered the jail staff to provide the state governments with the information about these inmates so they can send it within 15 days to the National Legal Service Authority. The court ruled that the jail administration must provide information about undertrial detainees, including their names, the charges they are facing, the date the bail order was issued, the conditions of the bail that were not met, and the amount of time they have spent in custody since the bail order.
“At the inception, we flagged the issue of detenues/undertrial prisoners, who continue to be in custody despite being granted bail but could not fulfil the bail conditions. Each jail authority of the country must convey to their state government the details which will be forwarded to NALSA for the formulation of a national level scheme to provide an assistance to such prisoners,” the bench said in its order.
According to Sanjay Hegde, senior Supreme Court lawyer, “A speedy trial is a part of the fundamental rights under Article 21 of the Constitution. The President of India has rightly flagged the issue for the attention of the Supreme Court. However, this actual solution may not lie totally with the courts, but more with the police process itself. Arrest is routinely resorted to and bail routinely opposed. Every person accused of an offence, is still entitled to his liberty, pending trial.”
He added, “Any officer effecting an arrest of a person with no prior antecedents, must be required to justify continuing incarceration at every stage of the remand, investigation and trial. Bail, not jail, must be the invariable rule. It is heartening to note the Supreme Court reiterating this position in recent times.”
MR Shamshad, another senior Supreme Court lawyer, said, “Overcrowding of prison has not been taken seriously despite various efforts for reform in jail administration. At the same time, it is also related to the judicial process of our country where judges are reluctant in granting bails of undertrials despite constant reminder of the Supreme Court to this effect. New legislations of strict criminal liabilities are another factor where judge’s discretion in granting bails has been restricted.”
Anas Tanwir Siddiqui, Advocate, Supreme Court, said, “With the state acting on first jail then investigate policy, this overcrowding of jails is going to be a bigger problem than it is now. This coupled with the economic disparity can end up causing law and order issues in jail if remedial steps are not immediately taken.”
“Despite there being a provision since the 2005 amendment in IPC not many people are able to avail of this right given by the law that if you cannot put bail for yourself or you are indignant in the sense that you don’t have the money to pay for the bail. In that case the court will release you under those provisions. But it is not very much known. We at ICLU are starting a project to first identify such people and help them secure bail and get out of the jail,” said advocate Tanwir Siddiqui.