Find decisive fixes to free undertrials

Steps by the Centre and Supreme Court may help, but a mindset change is needed first

The festering problem of India’s burgeoning undertrial population can roughly be broken down into four stages. The first begins when the police draw up a list of suspects. Often, and in far too many trivial cases, the first impulse is to put the accused behind bars, even though the Supreme Court (SC) has stated (in Arnesh Kumar vs the State of Bihar) that arrests should be an exception in cases where the maximum possible punishment is less than seven years. The second begins once a person lands behind bars. If they come from a marginalised community or cannot afford a lawyer, the quality of legal aid is questionable and uneven — many advocates on the panel have too much on their plate or are too poorly paid per case to devote attention to the complexities of each case. This happens even though Article 22(1) of the Constitution guarantees the right to consult and be defended by a lawyer. The third stage is before a judicial magistrate or district court — the lower judiciary, which is the first port of call for most citizens. But, despite a slew of orders from the higher judiciary, many magistrates continue to side with the prosecution and deny bail, making a mockery of the top court’s directive to make bail the norm and jail the exception. And the fourth stage kicks in when an undertrial receives bail, but a tangle of procedural hurdles — specifically the verification of surety amounts — often holds up the release of a person. In the case of Kerala journalist Siddique Kappan, who walked out of jail after spending more than two years behind bars, this last stage lasted almost two months.

What can be done? Two steps — one by the Centre and another by the top court — may show the way forward in resolving the intractable problem, at least partially. First, Union finance minister Nirmala Sitharaman proposed during the Budget that the government provide financial support to poor prisoners unable to afford their bail amounts. Then, the apex court said it would put in place a mechanism to guarantee legal aid for any undertrial who remains in jail for more than a week after being granted bail. The court also underlined that the insistence of a local surety often acted as a hurdle in releasing undertrials, and hinted that lower courts may not stress on this requirement from now on.

These are commendable steps but can only partially resolve the problem. To fix the first stage, prosecuting agencies and the police should strictly follow the Arnesh Kumar guidelines and Section 41 of the Code of Criminal Procedure, which was amended in 2009 to reduce unnecessary arrests by curtailing police discretion and asking the officer to specify reasons in writing for arresting a person for cases where the offence attracts a punishment of less than seven years in jail. To fix the second stage, the constitutional right to quality legal aid has to be realised, by increasing the number of lawyers, giving them more resources and ensuring robust oversight. To fix the third stage, the top court’s guidelines — which says an accused can be granted bail, based on whether they are a flight risk, liable to tamper with evidence or influence witnesses, or the gravity of the crime — have to be adhered to by the district judiciary. Most importantly, there needs to be a shift in mindsets and an acceptance of the primacy of individual liberty. Let us not make the process the punishment.