Once again the Supreme Court has turned its attention on the plight of poor prisoners and undertrials. On 5 February 2016, its Social Justice Bench directed the government to execute a series of reforms to ameliorate the condition of prisons. The state should engage competent legal aid lawyers, consider the release of undertrials under Sections 436 and 436A of the criminal procedure code and develop information management systems to address overcrowding in Indian prisons, especially in Maharashtra, Uttar Pradesh and Dadra and Nagar Haveli, the Supreme Court said. The legal aid for poor should not become poor legal aid, the bench thundered. It condemned, in unequivocal terms, the anti-poor property-based bail system.1 It was very categorical when it said: “It is against the spirit of law to incarcerate people only because of their poverty.” It ordered the legal services authority to take up cases of prisoners who are unable to furnish bail and are still in custody.
The following is the common scenario of most undertrials. Shanti Sahu and her 18-year-old daughter were arrested on charges of causing grievous hurt and criminal intimidation to their neighbours on 13June 2015.2 They were sent to jail not because their bail application was rejected, but because they were unable to engage an advocate. They secured bail when their employer arranged for an advocate. The court decided to grant bail on the condition of depositing Rs 20,000. It was clear that they would not be able to get out of jail because neither did they possess any valuables, nor could they arrange such a large sum from others.
Shanti’s husband deserted her 10 years ago. Since then she has been living in a hut with her daughter and teenage son. Both the women work as domestic help to meet their ends. They primarily survive on the ration from the public distribution system. Since their imprisonment, the teenage son had to drop out of school. He started working in various shops for food and shelter. The vulnerability of the adolescent has also has pushed him towards consuming drugs.
Exactly after six months, the court acquitted the mother and daughter from all criminal charges. Going by the normal standards of time taken for completion of trial, this was swift. The repeated applications from a conscious lawyer for speedy trial nudged the court towards disposing off this case swiftly.
Shanti’s case is not exceptional. According to the National Crime Records Bureau (NCRB) data of 2014, the percentage of undertrial prisoners (UTP) has been consistently increasing over the years (see Figure). The guilt of about three-fourths of the prison population is yet to be proved and the overall disposal of cases and conviction rate is also very poor. It means majority of UTPs are found innocent like Sahu and acquitted at the end of trial. There is no doubt that poor, Dalit and tribal backgrounds have a disproportionate representation in prison and also undertrials, without the ability to furnish the bail amount (see Tables 1 and 2, p 15).
Liberty Based on Property
The court sets an accused free on bail when it believes that the accused is not a threat to the ends of justice. It has a duty to see that the prosecution is completed in a fair and fearless condition in which both accused and victim get an equal opportunity to make their case. The state has a duty to prevent the accused from influencing the process in his favour. Once the court is convinced that there are no such possibilities, he is granted bail, and then the issue of security of property to secure his presence for trial arises. Unfortunately, the legal system presumes only fear of forfeiting property guarantees his availability. As a result, people who do not possess even minimal property become unequal before the law.
Why should only property be the criterion for securing liberty? Why cannot there be other forms of securities?3 If the judiciary is serious about ensuring the equality of liberty and dignity to all, a relook at the functioning of bail system is indispensable.
Dysfunctional Legal Aid
Data from the NCRB and the frank admission of the Supreme Court seems to suggest that legal aid for the poor is still a distant dream. Prisoners are languishing for years in jail before a legal aid counsel is appointed. When they are appointed, the UTPs do not trust their efficacy. The ceremonial and cursory visits by legal aid counsels and magistrates to prisons are not able to address this gargantuan problem.
The undertrials are routinely allotted legal aid counsels at the time of first production before the magistrate but the information does not reach them. The standing legal aid counsels are supposed to represent them when they are produced before the magistrate. In most cases, the legal aid counsels neither contact the prisoners nor their family member to prepare the arguments.
It is important to ask why the legal aid system functions this way. The system is presided by the judiciary itself, though rules and resources are made available by the state. The selection of legal aid panels is neither done with care nor is a careful criteria evolved. Advance consultations between prisoners or their family and counsels to strategise legal intervention are never heard of. The expectations of prisoners and performance of the counsels do not meet each other. Yet there are hardly any instances of removing any counsel on grounds of non-performance. The quality of services provided is not reviewed. The lower judiciary looks aside as the system remains dysfunctional but higher judiciary periodically wakes up. What explains the dysfunctionality and indifference of the system? Who has the stakes in keeping the system as it is? All these questions perhaps are relevant in the larger context.
Role of the Government
When we discuss the plight of prisoners and poor legal aid we often forget the fact that the government has a dual role. On the one hand it has the primary duty of controlling crime. In competitive politics, the ability of the government to control crime is considered as one of the primary parameters to assess its performance. There can also be democratic means of controlling crime but it is not a popular expectation. In a society which is polarised on many lines, evolving a democratic means of controlling crime is neither easy nor appreciated. These factors primarily structure the attitude and understanding of the government as a party to prosecution. As a result, the government deploys its enormous powers—legal and financial—against the accused in the adversarial system of prosecution. At present except the corporate bodies, no individual citizen can ever match the might of the government. At one point in time, the well-meaning judiciary realised that the fight is between unequal parties of gargantuan proportions. The citizen as accused cannot defend his life and liberty in a fight against the state without adequate support. The idea of legal aid thus has its roots in realisation of inequalities of resources between the accused and government and their invariable impact on the outcome of prosecution.
This legal aid needs to be organised by the state through appropriate legislation and allocation of resources—human and financial.4 However in a world where controlling crime by any means takes primacy, it is expected that many thousands would be incarcerated without proving their guilt, legal aid be damned.
Conclusions
Equality as an ideal exerts strong moral force in modern life. But we are not sure in practice what exactly we mean when we say everyone is equal before the law. At present equal protection of law is mediated by property relations. The unequal conditions of life like property and caste do determine the fate of the citizens and value of law.
To overcome the traditional inequalities of “status societies,” the idea of equality before law was invented in Western societies. While achieving greater equality between citizens of different social backgrounds is a continuous process, the indifferent criminal justice system seems to be reinforcing the traditional inequalities behind bars. This is only imitating the religions that claim all are children of god and equal, but men and women, priest and people, saved and damned are different—everybody is equal before law but the citizens without property and social status are not.
Notes
1 For example see: State of Rajasthan v Balchand (AIR 1977 SC 2447), Moti Ram & Ors v State of MP (AIR 1978 SC 1954), Maneka Gandhi v Union of India (AIR 1978 SC 597) Hussainara Khatoon of Bihar v State (Air 1979 SC 1360), Bhim Singh v Union of India W P (Criminal) No 310 of 2005, Vijay Aggarwal v Union of India & Ors WP(Crl) No 32/2013 on dated 5 September 2014.
2 Shanti, a woman from backward caste, is from Tarva village in the Sonepur District of Odisha. She and her daughter were in Sonepur jail and were tried by the court of Sub-Divisional Judicial Magistrate (SDJM), Sonepur in G R Case No 288 of 2015.
3 Speaking through the court, Justice Krishna Iyer said, “…the basic rule is bail, not jail and observed while the system—of pecuniary bail has a tradition behind it, the time has come for rethinking on the subject. It may well be that in most cases not monetary surety ship but undertaking by relations of the petitioner or organisation to which he belongs may be better and more socially relevant (State of Rajasthan v Balchand, AIR 1977 SC 2447). Again condemning the property-based bail system, he urged the parliament to consider whether in our socialist republic, with social justice as its hallmark, monetary superstition, not other relevant considerations like family ties, roots in the community, membership of stable organisations, should prevail for bail bonds to ensure that the “bailee” does not flee justice. The best guarantee of presence in court is the reach of the law, not the money tag (Moti Ram & Ors v State of MP, AIR 1978 SC 1954).
4 The judiciary has rarely reprimanded the government for perennial problem of lack of adequate number of escort police, judges, legal experts and doctors or lack of standards in crime management, which has been resulting in injustice to both victims as well as the accused.