Bail, not jail: Delhi HC right, bail can’t be denied to send a message

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Published: June 4, 2020 3:50 AM

The fact is that close to 70% of prisoners in India’s overcrowded jails are under-trials, as per data from the National Crime Records Bureau (NCRB)—India’s showing is far poorer than most comparable democracies in this regard.

Justice AJ Bhambhani also noted, “It is this sentiment … that leads to overcrowding of jails; and leaves undertrials with the inevitable impression that they are being … treated unfairly by the system.”Justice AJ Bhambhani also noted, “It is this sentiment … that leads to overcrowding of jails; and leaves undertrials with the inevitable impression that they are being … treated unfairly by the system.”

The Delhi High Court is right, the remit of the courts is to dispense justice, and imprisonment is primarily for those convicted and not about detaining under-trials to give a message to the public. Granting bail to an accused in the communal violence in Delhi earlier this year—the Delhi Police had argued against this, saying bail would send an adverse message—the court said that bail can’t be denied to an accused if the court is convinced that neither investigation nor prosecution is served by keeping her in custody. Justice AJ Bhambhani also noted, “It is this sentiment … that leads to overcrowding of jails; and leaves undertrials with the inevitable impression that they are being … treated unfairly by the system.”

The fact is that close to 70% of prisoners in India’s overcrowded jails are under-trials, as per data from the National Crime Records Bureau (NCRB)—India’s showing is far poorer than most comparable democracies in this regard. And, with 4.66 lakh prisoners (in 2018) versus a total capacity of 3.96 lakh in Indian jails, the prison infrastructure is already severely stretched, with the national capital having one of the worst overcrowding. This and serious under-staffing in jails (just about 70% of the sanctioned posts are occupied in Indian prisons) make for a deadly cocktail for prison administration in India. Beyond pure infrastructural grounds, there are compelling reasons of justice and human rights that would justify a ‘bail as norm’ stance. There are enough examples of wrongful incarceration, with under-trials and convicts being found not guilty after lengthy trials and equally lengthy stints in prison. Also, incarceration of under-trials in India seems to typically weigh down on the marginalised, with 30% of the under-trials completely illiterate (likely overwhelmingly from the lower economic strata of the society) while the bulk (70%) haven’t completed school. As per Prison Statistics India 2015 (the last year for which such data was published), SCs, STs and OBCs, made for 66% of the under-trials in the country who were in prison. The continued imprisonment of under-trials—erstwhile Jammu & Kashmir and Gujarat had relatively high rates of under-trials lodged in jail for more than five years—also likely assaults the right to judicial reprieve in many cases.

Indeed, Amnesty International found that the Section 436A of the Criminal Procedure Code, which provides for release of under-trials who have been in jail for half of the maximum sentence prescribed for the crime they are charged with (provided the maximum sentence is not death), was being grossly violated to the detriment of the undertrial’s interest in some states, while it was over-estimated in some states. The criminal justice system in India needs to reorient itself towards bail as the norm if justice is indeed to be done.

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