Crime and Repressive Justice: Both are Hideous

Crime is complex. Its dimensions are more so. Poverty, neglect, low self-esteem, alcohol, drug abuse and circumstances into which one is born, they all influence and the list can be endless. 

However, no crime can be safely ascribed to a single cause. Life itself is complex, heredity is too variant and imperfect, too many separate things contribute to human behaviour, to make it possible to trace all actions to a single cause. If crime is proven, the status changes to that of a criminal. But is there any logic in branding someone a criminal until his crime is proven? Does it justify incarceration as an undertrial? How long can one remain as an undertrial? If he or she is exonerated later, who could possibly restore the lost pride and the lost personality? That it happens in case of more than 67% of 4.33 lakh inmates lodged in 1,400 jails in the country is most unfortunate. They are rarely produced in court, sometimes for want of police escort and scarcely given legal aid The National Crime Records Bureau (NCRB) prison statistics, 2016 released in 2019 further reports that almost 2000 children have to perforce live in these jails with their mothers who are undertrials. Are these children then deductive undertrials or are children of lesser gods?

Meaningless incarceration for long periods leaves the prisoners and their families financially and emotionally devastated and even mars their future chances of employment and societal reintegration. The periods of incarceration can make psychological wrecks of even the bravest. Many of them neither have access to a “decent” lawyer nor have funds to buy coupons for daily items, or “grease the palm of prison officials or convict warders” to avail better facilities such as mattresses or better ventilated spaces. Does Article 39A of the Constitution which provides free legal aid to those who cannot afford it actually deliver? We have had deep rooted caste prejudices and lack of opportunities for a decent living in the society. Even over-policing affects the delicate balance between communities. Add poverty and we have a heady mix for crime both inside and outside the prisons. 

Prisoners too have fundamental rights under Article, 14, 19, 20, 21 and 22 of the Constitution of India. Whereas Article 14 deals with right to equality before law and equal protection of law to all persons, Article 21 deals with right to life and personal liberty. These are however seldom practiced. Doesn’t an undertrial deserve to be treated fairly? 

The recent NCB probe has exposed several chinks that need laws not only to be applied equally but also seen to be applied equally. Whereas for similar levels of crime, some escaped with just three- or four-days custody, there were others who spent more than three months in custody. Yet there are others roaming free. The common thread however is that almost all had their cases heard on a weekly basis and without delays. There are instances where the cases of high and mighty are heard with a day’s notice in the highest of courts. There are also those who abscond for months and years together without a trace making a comeback at an opportune time. None of them had to face the undertrial ignominy. The wheels of justice indeed move fast when there are interests of the powerful involved. Why can’t we apply the same standards to the scores of undertrials in the country who otherwise are languishing in the most inhuman conditions without a trial?  

Yes. the law does protect an undertrial by way of a release on a personal bond under section 436 of the Code of Criminal Procedure for certain class of crimes, if the undertrial has already been held for a period equal to half the potential sentence. But then how does one estimate what that potential sentence could be when the crime itself is subject to a host of accompanying circumstances, proving the veracity of which can be extremely contentious? That the code is misused more often than not in releasing a large number of undertrials incorrectly is probably another major concern. Since the undertrials are poor most of the time and cannot afford legal recourse, the State provides them that help. However, since these lawyers are paid a pittance, they seldom deliver on merits. The lack of financial resources encourages the rise of middle-men, sometimes the same lawyers, who provide sureties at a cost and also get a cut. They have a clientele from the marginalised communities interested in seeking bail. India has one of the lowest police to population ratios in the world at 151 police persons for 100,000 population. Even the quality of investigation is so poor resulting often in longer incarceration of undertrial prisoners. Should we not raise the remuneration for legal aid lawyers, standardised across the country, recruit more of them along with a separate reserve of police personnel to escort the undertrials, if we were to infuse a little sanity in our legal systems?

According to the NCRB data, as on March 31, 2016, more than three crore cases are pending in various courts, and two of every three prison inmates in the country is an undertrial. The SC must be lauded for a very historical judgement in recent times, in reference to undertrials and inhuman conditions in prisons. It now requires that there are ‘Undertrial Review Committee’ in every district which meets every quarter to look into effective implementation of Sections 436 and 436A of the CrPC so that undertrial prisoners are released at the earliest, even those who cannot furnish bail bonds due to poverty.

Among many other facilitating reforms, the Secretary of the ‘District Legal Services Committee’ is to now look into the issue of release of undertrial prisoners in compoundable offences. He must explore the possibility of compounding offences rather than requiring a trial to take place, establish fast-track courts, establish open prisons in states and UTs, launch a National Mission for Justice Delivery and Legal Reforms, introduce the concept of plea bargaining through Section 265 of CrPC. Even insertion of Section 436A setting a limit for the maximum period for which an undertrial prisoner can be detained, promotion of plea bargaining by National Legal Services Authority (NALSA) within CrPC parameters and providing free legal services are all excellent reforms.

Having put in motion an enabling system, the next step must be to implement the provisions in earnest by both the State and the Centre, for the undertrials too are citizens of the country and not criminals till their crime is proven. In the narrative of crime, there are some larger questions to answer. Does imprisonment really solve the problem of crime? It does nothing for the victims of crime, but perpetuates the idea of retribution, thus maintaining the endless cycle of violence in our culture. It is a cruel and useless substitute for the elimination of those conditions, poverty, unemployment, homelessness, desperation, casteism, greed, which are at the root of most punished crime. However, the crimes of the rich and powerful go mostly unpunished as reflected by Howard Zinn an American social thinker. Is this not travesty of justice?