I read Arun Shourie’s recently-published ‘The Commissioner for Lost Causes’. One of those causes wasn’t quite lost. “Around 40,000 undertrials were estimated to have been released as a result of the Supreme Court’s judgements…Twenty-seven thousand of these were from Bihar jails.” Everyone interested in the legal system now knows the name of Hussainara Khatoon. Who was Hussainara Khatoon? She was one of the women prisoners and her name is linked to that of Pushpa Kapila Hingorani, the lawyer. Hussainara and her family fled Bangladesh in 1975 and she was held in protective custody for four years, though the ostensible rule was that she should have been released on bond. To quote Arun Shourie, “A public-spirited advocate, an activist and creative Judge, propitious times, a new type of journalism.” A fortuitous set of circumstances ensuring that particular cause, of under-trials, wasn’t lost.
To quote from the 9th March 1979 judgement, “We find from the lists of under-trial prisoners filed before us on behalf of the State of Bihar that the under-trial prisoners whose names are set out in the chart filed by Mrs. Hingorani today have been in jail for periods longer than the maximum term for which they could have been sentenced; if convicted. This discloses a shocking state of affairs and betrays complete lack of concern for human values...There are also various under-trial prisoners who have been in jail for periods exceeding one-half of the maximum punishment that could be awarded to them, if convicted, for the offences with which they are charged.” To set matters in perspective, there were an estimated 120,000 under-trial prisoners at that time. 40,000, that is, one-third, were freed.
Every year, there are “Prison Statistics”. Because of time-lags, the last such, released in December 2021, has figures for 2020. (We didn’t have such data in 1979.) Numbers are aggregated upwards. They come from prison departments of States and Union Territories. In 2020, there were 371,848 under-trial prisoners, an increase from 324,141 in 2018. There are different types of jails. In 2020, 50% of under-trials were in district jails, 36.1% in central jails and 11.9% in sub-jails.
Most under-trials were in Uttar Pradesh, followed by Bihar and then by Madhya Pradesh. Some of these under-trials (71.2%) have been there for a period of less than a year. These are under-trials who haven’t been convicted. It is understandable that their release, on bail and pending trial, or on the basis of acquittal, was dislocated because of Covid, explaining the increase in numbers between 2018 and 2020. However, 16,603 under-trials have been in prison for between three and five years and 7,128 for more than five years. This raises valid questions about the speed of delivering criminal justice.
The Code of Criminal Procedure has Section 436A, which deals with maximum period for which an under-trial prisoner can be detained.
“Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties; Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties; Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law,” it states.
There are several reasons why under-trials can languish in prisons despite Section 436A, all of which were visited and revisited in the course of Hussainara Khatoon’s case. Prisoners may not be aware of their rights, or no one may have acted on their behalf. “Out of 3,71,848 under-trials lodged in various jails in the country, a total of 1,00,297 under-trial prisoners were illiterate and 1,51,386 were educated below Class Xth standard,” states the Prison Statistics.
Logically, the fortuitous set of circumstances should continue to exist today. After all, there are clear court guidelines on release of under-trials under various categories — (1) civil imprisonment; (2) where custody has been for more than 15 days and maximum sentence is 7 years or less; (3) senior citizens in custody for more than 3 months, where maximum sentence is 10 years or less; (4) in jail for more than 6 months, with offences under Sections 304 (culpable homicide) or 307 (attempt to murder) of IPC; (5) relatives in jail for more than one year, with offences under Section 304B (dowry) of IPC. However, as court guidelines also indicate, there are crimes for which these principles won’t apply — offences under NDPS and POCSO Acts, PCA, PMLA, CBI/ED investigations, anti-terrorism legislation and so on.
A former chief justice once told me, “Everyone who should be in jail, is outside jail and everyone who is in jail, should be outside jail.”
That was a general comment about criminal justice, not specifically about under-trials. It was also an exaggeration. If one uses that one-third thumb rule from the Hussainara Khatoon case, around 124,000 under-trials shouldn’t be in jail today. However, any metric based on ratios/percentages is a function of release of convicts and that can bias numbers.
BIBEK DEBROY
Chairman, Economic Advisory Council to the PM
Follow him on Twitter @bibekdebroy