The Telegraph
Friday , December 7 , 2012
Since 1st March, 1999
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How jail jostle can be avoided


The tragedy of Kailash Das illustrates the unintended consequence of sending people to jail for petty offences.

Das landed in Midnapore jail as an undertrial prisoner as he failed to pay the fine of Rs 200 for travelling in train without a ticket. He was killed within days of his detention on March 21 last year.

The matter came to light during the hearing of a public interest litigation filed by lawyer Subroto Mookherjee in Calcutta High Court at the division bench of acting Chief Justice Pratap Kumar Roy and Justice Subal Baidya on November 30.

The jail authorities claimed Das died following a clash between two groups of prisoners. But Mookherjee said Das was murdered by some old jailbirds after he failed to pay money to them.

The bench asked the district administration and the jail authorities to provide “necessary relief” to the prisoners while awaiting further reports.

Larger issues concerning the undertrials also came up during the hearing. “Why was a poor person like Das who could not pay his fine sent to jail? There are many such poor people like him who are accused of petty crimes and still languishing in jails,” the lawyer said.

Ranbir Kumar, the inspector-general of correctional homes in Bengal, declined to comment on the circumstances of Das’s death. But Kumar felt that persons accused of petty crimes should not be sent to jail.

“The overcrowding in our jails will come down if those accused under bailable offences, including petty crimes, are not sent to jails. Those who are sentenced among them, particularly the first offenders, can be put on probation under societal supervisions, similar to the provisions in the western legal system,” the IG said. “There are a good number of undertrials in Bengal jails who cannot afford to pay bail bonds.”

Incidentally, Calcutta High Court on Thursday directed the Bengal chief secretary to file a report within seven days on foreigners allegedly rotting in different jails across Bengal for years without trial.

Role of lawyers

Lawyers say that apart from manpower and infrastructure shortfalls in courts, a “lack of humane and social concern and eroding professional ethics” on the part of a section of their fraternity, too, prolong undertrials’ agony.

Gitanath Ganguly, a senior lawyer and executive chairman of the state legal aid services, said public prosecutors as well as defence counsel make unnecessary delays in argument and witness examination.

“This allows police officers to further slow down the investigation, filing of the chargesheet and production of evidence and witnesses,” Ganguly said in September.

Sharadindu Biswas, a former chairman of the state bar council, blamed lawyers who seek adjournments for years together as they hop from one court to another, busy earning fees.

“The bigger the lawyer, the more time he takes,” Biswas said. He added many government-appointed defence lawyers neglect poor clients because they don’t receive fees.

Some advocates suggested fixing the time for arguments during hearings to ensure speedy justice. According to Biswas, lawyers are not allowed to argue for days, or to refer to an unlimited number of case laws, in the West where the judicial system fixes a timeframe for the disposal of criminal and civil cases.

“There is no such limit in our system. The Criminal Procedure Code (CrPC) has to be amended to enable the judges to do so. Also, Supreme Court and high court judges can pass orders against delays, and these orders will be treated as laws,” he said.

Justice S.P. Talukdar, who now heads a tribunal, however, said the CrPC allowed daily hearings. “The courts can control the duration of argument by lawyers, but it needs mutual confidence between the bar and the judges.”

He added that western and Indian practices cannot be compared because Indian courts need to hear many more cases.

“It’s true that justice delayed is justice denied. But it’s also true that justice hurried is justice buried. Judges have to decide cases, not dispose of them. But that does not justify inordinate delays.”


A former district judge who wouldn’t be quoted said district judges and the higher judiciary were overburdened with managing the recruitment of subordinate judges, magistrates — even peons and other court staff. “They set the papers and work as examiners and interviewers to fill up vacancies,” he said.

He said many judges are overburdened even in the courtroom. “Subordinate judges are asked to hear 50-60 bail petitions within a short period. Do you expect us to pay proper attention to each petition on a given day?”

“This practice (of judges overseeing recruitment) is followed in keeping with a Supreme Court order,” former law minister Malay Ghatak said. “If the judiciary decides to forgo this responsibility, the government can take it up.”

Past judges’ role

Justice (retd) D.K. Basu recalled how former acting Chief Justice T.K. Basu and Justice P.C. Barua had helped his initiative in the 1980s, when he was a lawyer, in the release and rehabilitation of children languishing in jails with their convicted mothers.

After becoming a high court judge in 1987, Basu took the initiative in releasing Naxalite prisoners and ensuring their medical treatment. Later, he visited jails and helped the release and rehabilitation of around 250 hapless women, jailed as non-criminal lunatics for “three to 30 years”.

In 1997, the Supreme Court passed a landmark judgment on a PIL on custody torture that Basu had filed before he became a high court judge.

Known as the “Eleven Commandments”, the judgment on the D.K. Basu vs State of West Bengal is still considered a milestone in curbing human rights violations in the country.

“We were inspired by the social concerns and judicial activism of earlier generations of Supreme Court and high court judges, from Justices V.R. Krishna Iyer to P.N. Bhagwati, Y.V. Chandrachud, D.A. Desai and Kuldip Singh. That spirit is now lacking,” the septuagenarian Basu said.

Justice Talukdar, who belongs to a later generation but contributed to safeguarding jail inmates’ rights in his own way, concurred. “The commitment and competence of the courts are key to a speedy trial. Both are on the wane.”

Ganguly remembers that earlier judges used to appoint amicus curie (friend of the court) from among the lawyers to find out details about prisoners.

Apex court nudge

The Supreme Court and the National Human Rights Commission have repeatedly issued guidelines for speedy trial and bail, and free legal aid for the poor among the accused.

“It is high time that the public conscience is awakened and the government as well as the judiciary begin to realise that in the dark cells of our prisons, there are a large number of men and women waiting patiently, impatiently perhaps, but in vain, for justice — a commodity tragically beyond their reach and grasp,” the apex court had observed in H. Khatoon & Others vs Home Secretary, Bihar, way back in 1979.

“Bail should be the rule and jail the exception, the Supreme Court had said it in the 2G spectrum case. But... poor and common prisoners are still rotting in jails,” said Chhoton Das of Bandimukti Committee.

In 1996, the apex court had directed release on bail or personal bond of prisoners whose trials were pending for a year or more in cases where the maximum punishment is three to seven years in jail.

Two years earlier, the same order was given for the benefit of undertrials who had been imprisoned for half the period of the maximum punishment for the offence they had been accused of. These are seldom followed.

Frozen reports

In 2003, the Justice V.S. Malimath committee on criminal justice reforms recommended distribution of pamphlets on the rights of the accused, and a separate police investigation wing with a mandate that it is accountable only to the rule of law.

The committee asked for a review of the Indian Penal Code, CrPC, Evidence Act as well as the Indian Police Act, 1861, especially in respect of punishment, arrest and bail. It also suggested “reclassification of offences and punishments, making finable cases bailable”.

It recommended summary trials in cases where the maximum imprisonment is up to three years.

The Law Commission too recommended that the trials of jailed accused be given preference and disposed of in four months. It suggested expanding the list of bailable offences, releasing undertrials on bail without sureties after one month in jail and setting up separate institutions for the detention of undertrials.

Both reports continue to gather dust.