Three out of every four Prisoners are under trial in our country. Over 90% inmates in Delhi and Jammu & Kashmir are under trial. This is the highest in the past 25 Years. Whereas total number of prison inmates rose 1% in 2020, from the previous year, the number of undertrial inmates increased by nearly 12% per the 2020 report of the Prison Statistics-India. Undertrials now comprise 76% of inmates up from 69% in 2019. The release of undertrials too declined by 19.6% in 2020, compared to the previous year. Two in every three undertrials belong to marginalised caste groups. All the prisons have an occupancy rate that exceeds 100%. Do these figures tell a tale?
436A of the Code of Criminal Procedure (Cr.P.C.) provides for the release of undertrials who have undergone more than half the prison term for the accused offences. Is there a periodic list of inmates published, who are eligible for early release under the section? Are these prisoners actually released? Are the prisoners at least aware of the provision? Answers to all these questions may seem a simple no.
In an increasingly digital world, we use high end technology to solve almost all problems, however difficult they may be. We provide the best Software solutions to the world. Is it difficult to create a Data Base of all prisoners in the country and generate auto alerts when a prisoner becomes eligible for release? In case a prisoner is to be kept in jail in spite of the provision, is it difficult to flag an appropriate reference?
Several from the marginalised communities and even those from the forward communities are vulnerable to illegal detentions, false confessional statements and arrests. Most often, they have no means to seek bail. Their cases never come to court and have no other means either. Are matters such as civil rights, individual rights protection, political injustice, and public morality not important for prisoners?
Of what use is a provision in the Cr.P.C. if it is not applied uniformly and intuitively? Can our Judiciary use their judicial power to articulate and enforce the appropriate sections and provisions, so it benefits the society? Can our Judiciary indulge in some activism even if no constitutional articles support it? Can our judges deviate from standard precedents in favour of progressive and novel social policies even if it borders on judicial activism? Are not judges encouraged to use their powers to redress injustices, especially when the administration in the government fails to do so? Should someone raise the case of these hapless prisoners? Haven’t our judiciary intervened in several Suo Moto cases, and PIL’s in public matters?
We all know the case of restructuring of the Board for Cricket Control in India (BCCI). Even as it is recognised as a private body, committees of eminent people were appointed to reform it. Similarly, the Supreme Court, ordered the then UPA government to set up a SIT to investigate the scourge of black money. That the NDA government completed the task is another matter.
‘Due process of law’ means that the procedure which is established by the law must be just, fair and reasonable. 436A is a provision. How is ‘Due process of Law’ seen to be followed if the provisions in the law are sought to be violated? Hasn’t our judiciary in the past overreached their jurisdiction? Haven’t some of their decisions actually been in the domain of the legislative and executive?
A little activism on their part may resolve several societal incongruencies besides addressing the legislature’s and executive’s inaction. They may even promote better governance and build checks and balances. Redefining Article 14, 19, 21, 32, 226 in the spirit in which they were written in the constitution to prevent the state from acting arbitrarily and infringing on citizens’ fundamental rights is called for.
Of course, such judgments may set a precedent for other judgments. They may result in loss of faith in the judiciary. They may limit the State and Central machinery’s functioning. Some statutory and legislative laws may be violated. But then, if some social evils can be corrected, why not indulge? Such decisions however, must not transgress the boundaries of personal gains or be interpreted as Judicial overreach or Judicial adventurism.
What we also need are prison reforms. There is a detrimental impact of imprisonment, not only on individuals jailed, but on their families and even the communities in which they may live. Several in crime are poor and disenfranchised in some way. Their families experience great financial distress even as they have to cater to new expenses such as the cost of a lawyer, prison visits etc. Poverty and crime are related and very well documented. As an evolving society, should we not reform the prisoners rather than incarcerate them without trial? Have we ever wondered how much of a financial drain it is, on the economy of a country, to maintain the prisons and the prisoners? A sentence of imprisonment is a deprivation of the basic right to liberty. Does it restrict a prisoner’s other human rights, except for those which are naturally restricted by their being in prison?
Our prisons are anything but healthy. They are overcrowded, and with poor sanitation. Since most prisoners are poorly educated and socio-economically deprived, they have no access to adequate health services. The prison sentence can only further deteriorate their health. Many may end up with new health issues that they may never have had before. Consequently, even the prison staff may become vulnerable to most diseases.
Our Prison rules are archaic. Prison reforms are necessary in this context, so the human rights of prisoners are also protected. Should we not create a conducive environment for their social reintegration? Our legislature has the power to make laws. The moot question however is if such power is absolute. Is it not time our Judiciary reviews the validity of the laws passed in the past by the legislature and also start a process of Prison reforms?
Our Courts must not only protect the rights of its free citizens but also of those who are in the prisons. They must also be seen to protect such rights. After all, is the quality of the people found in our jails not a reflection of our civilization?