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Why Judiciary and Executive must heed President Murmu’s serious concerns on prisoners’ rights

Appalled at the government’s talk of building more jails, President Murmu made a strong appeal that the governments and judiciary should work together to tackle problems like poor legal aid, pre-trial detentions and the over-representation of marginalised communities inside jails.

Sabrangindia 30 Nov 2022

President

“These days I hear that we need to set up more jails. Why do we need them? If we are moving ahead as a society, if we are making progress, why do we need more jails? Is this development? Should we not be, in fact, closing down the existing ones?” asked President Droupadi Murmu last week at the valedictory session of the Law Day celebrations organised by the Supreme Court. These were her closing lines of a nine-minute speech in which she touched upon her experiences visiting prisons when she was an MLA of Odisha and later the governor of Jharkhand. 

Listening attentively to her remarks at the Constitution day celebrations organised by the Supreme Court of India in New Delhi on November 26, 2022, were CJI D.Y Chandrachud and Union law minister Kiren Rijiju. 

Her strong speech raised several crucial issues – the callousness of the bureaucracy, the overcrowding of prisons, the social identity of those languishing in prisons and prolonged pre-trial detention. The President was forthright. Judges of the Supreme Court and high courts, as well as the Union law minister Kiren Rijiju were among the audience. She wanted them to deliberate on the issue and come up with a solution. “The executive, the legislature and the judiciary will have to come together and find a solution,” she added.

Immediately, following President Murmu’s speech, a bench of Justices S.K. Kaul and Abhay S. Oka, on Tuesday, November 29, directed the state jail authorities to submit details of prisoners who have been languishing in jail even after securing bail. As per the court’s direction, the details have to be first sent to the respective state governments, who will then forward the documents to the National Legal Service Authority within 15 days.

Over the past decade, the Supreme Court and high courts have, on multiple occasions, raised the issue of overcrowding and the need to decongest prison spaces across India. But much of the courts’ observations and directions have remained at the judicial level. Efforts to decongest have been abrupt and have largely proved inadequate. As of today, 6,05,600 prisoners are crammed inside 1,378 prisons which are meant to accommodate 4,25,609 prisoners.

Jurisprudence 

In the landmark Re-Inhuman Conditions In 1382 prisons, the apex court in 2016 directed state governments to take necessary measures to urgently decongest prisons. As one of the immediate outcomes, a committee on prison reforms, headed by former Supreme Court Justice Amitava Roy, was set up. Though the committee was set up in 2018 and was asked to provide recommendations within 12 months, it was given several extensions. In March this year, it has been now given a final six-month extension to submit the report.

So often, Courts have expressed “shock” and sought responses from the Union and state home departments for measures taken to tackle the issue of poor prison conditions. One such order, taken up suo motu by the top court, was passed in March 2020 as a part of de-congestion measures for the COVID-19 pandemic. Many states released prisoners in large batches at the time, albeit temporarily.

However, one major issue and systemic failure during 2020-2021 were that the Courts did not sit and hence bail applications were simply not heard. While this was a huge lacunae in which the Executive and Judiciary both played a part –as access to justice was not regarded as part of a basic, essential commodity—the police arm of the state continued with arrests and round-ups; the courts were simply not available for bail.

Now, as the dangers of the pandemic abated, numbers have spiraled, again, in 2022. In Maharashtra, those released on temporary bail and parole have all returned to jail, taking the prison occupancy rate to a staggering 180%. In some states like Delhi and Uttar Pradesh, the occupancy rate has touched a staggering 200%. 

The annual reports of the National Crime Record Bureau are telling. They provides not just the total number of people in prisons but also provides the break-up of the caste and religious backgrounds of those who are incarcerated. While there is no consistent methodology followed in gathering information, the approximate estimate shows that over 70% of those in jail belong to the Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs). Experts say the real figure may be higher. 

https://cjp.org.in/are-women-entitled-to-special-provisions-in-prison/

Citizens for Justice and Peace (www.cjp.org.in) had done a detailed report especially on Conditions of Women Prisoners had focused on the over-crowding and utter failure of the state administration(s) to provide health care, employment, education as recommended by the Supreme Court of India and the Model Jail manual (2017).

President Murmu, herself hails from the Santhali tribe in Uparbeda village in the Baidaposi area of Rairangpur in Odisha, says it is important to know who ends up in jail. She spoke emotively of her time as MLA from Odisha whereas chairperson of the Standing Committee for Home she had a chance to visit all jails and see the condition of those inside who had absolutely no access to legal aid. During this stint, she says, she visited all prisons across the state, at regular intervals. “I was not asked to visit them. I did that of my own volition. I wanted to know who are these people, how they survive, what happens to them when in jail.” 

“They are those who don’t know anything about their fundamental rights, fundamental duties or the preamble (of the Constitution) … they are left in jail to languish for 10, 20, 30 years… in many cases the crime is as petty as having slapped another person,” she said.

As custodians of prisoners, it is the judiciary that needs to keep a close check on the condition of prisoners and ensure their rights are not violated. But judges seldom pay visits to jails. Murmu, as a governor of Jharkhand later, continued to focus on prisons. In Jharkhand too, she says, the condition was no better. While STs constitute 22% of Odisha’s population, this number is 26% in Jharkhand. In these states, however, people from these communities represent close to 30% of the prison population.

Former Chief Justice of India (CJI) N.V. Ramanna, just weeks before his retirement, had stated t a meeting of the National Legal Services Authority (Nalsa) in Jaipur, Rajasthan: “In our criminal justice system, the process is the punishment. From hasty indiscriminate arrests to difficulty in obtaining bail, the process leading to the prolonged incarceration of undertrials needs urgent attention.” 

It was the short 70 plus day tenure of CJI UU Lalit that saw the country’s attention sharply focus on the need for bail.

Before that, on July 11, 2022 a division bench of the Supreme Courtr (Justices  Sanjay Kishan Kaul and Justice M M Sundresh, re-iterated the well recognised principle of bail being the rule and jail the exception and stressed that this is not being followed properly by the country’s investigating agencies as well as the courts. The Supreme Court then asked the Central government to consider formulating a separate law to streamline the grant of bail. In its  85-page-order, issued certain directions that should be kept in mind with regard to the issue of granting bail to under trial prisoners.

Soon after D.Y. Chandrachud took charge as the CJI earlier this month, he announced that the apex court will look into bail matters on priority. At an event organised by the Bar Council of India, CJI Chandrachud said one of the reasons bail applications reach the apex court is because of the “reluctance at grassroots to grant bail”.

The CJI said, “Judges at the grassroots are reluctant to grant bail not because they do not understand crime but there is a sense of fear of being targeted for granting bail in heinous cases.” As an urgent measure, the CJI decided to distribute pending bail cases among the Supreme Court judges and the courts are now in the process of disposing of them before the Christmas holidays start in December.

Bail, however, is not the only issue plaguing the prisons and judiciary. According to data provided by the NCRB’s 2021 report, of the total 1.44 crore cases registered under the Indian Penal Code (IPC), 13 lakh cases were disposed of in the year 2020. Of the pending cases, a large chunk is constituted by old cases that are still awaiting trial. 

While the judiciary has at least identified and shown willingness to tackle the issue, the government – both at the Centre and state level – has only considered setting up more prisons in response. Soon after the change of guard in Maharashtra, Devendra Fadnavis, Maharashtra’s home minister, proudly announced that a new prison will soon be set up in Mumbai. Within the Mumbai metropolitan region, there are already five prisons but all are overcrowded. In 2019, the Union government came up with a Rs 1,800 crore plan to as many as 199 new jails across India. These decisions are taken with no clear de-congestion plans for existing prisons. 

President Murmu has now expressed serious concerns about plans to increase the number of jails. And if society is making progress, there is no place for prisons, she said. “Is this our idea of development, to build more jails?” she asked.

She ended her speech by saying that she has left some things unsaid, which the judiciary and the government should think about and understand. This was yet another indication that the problems that plague Indian prisons cannot be resolved unless these two institutions decide to tackle them together and on priority.

Related:

SC, once again, seeks DLSA intervention to ensure that under trials unable to provide surety are released from prison

Lower court judges hesitant to give bail: Chief Justice of India DY Chandrachud

Re-evaluate premature release policy for convicts serving life terms: SC to UP gov’t

Why Judiciary and Executive must heed President Murmu’s serious concerns on prisoners’ rights

Appalled at the government’s talk of building more jails, President Murmu made a strong appeal that the governments and judiciary should work together to tackle problems like poor legal aid, pre-trial detentions and the over-representation of marginalised communities inside jails.

President

“These days I hear that we need to set up more jails. Why do we need them? If we are moving ahead as a society, if we are making progress, why do we need more jails? Is this development? Should we not be, in fact, closing down the existing ones?” asked President Droupadi Murmu last week at the valedictory session of the Law Day celebrations organised by the Supreme Court. These were her closing lines of a nine-minute speech in which she touched upon her experiences visiting prisons when she was an MLA of Odisha and later the governor of Jharkhand. 

Listening attentively to her remarks at the Constitution day celebrations organised by the Supreme Court of India in New Delhi on November 26, 2022, were CJI D.Y Chandrachud and Union law minister Kiren Rijiju. 

Her strong speech raised several crucial issues – the callousness of the bureaucracy, the overcrowding of prisons, the social identity of those languishing in prisons and prolonged pre-trial detention. The President was forthright. Judges of the Supreme Court and high courts, as well as the Union law minister Kiren Rijiju were among the audience. She wanted them to deliberate on the issue and come up with a solution. “The executive, the legislature and the judiciary will have to come together and find a solution,” she added.

Immediately, following President Murmu’s speech, a bench of Justices S.K. Kaul and Abhay S. Oka, on Tuesday, November 29, directed the state jail authorities to submit details of prisoners who have been languishing in jail even after securing bail. As per the court’s direction, the details have to be first sent to the respective state governments, who will then forward the documents to the National Legal Service Authority within 15 days.

Over the past decade, the Supreme Court and high courts have, on multiple occasions, raised the issue of overcrowding and the need to decongest prison spaces across India. But much of the courts’ observations and directions have remained at the judicial level. Efforts to decongest have been abrupt and have largely proved inadequate. As of today, 6,05,600 prisoners are crammed inside 1,378 prisons which are meant to accommodate 4,25,609 prisoners.

Jurisprudence 

In the landmark Re-Inhuman Conditions In 1382 prisons, the apex court in 2016 directed state governments to take necessary measures to urgently decongest prisons. As one of the immediate outcomes, a committee on prison reforms, headed by former Supreme Court Justice Amitava Roy, was set up. Though the committee was set up in 2018 and was asked to provide recommendations within 12 months, it was given several extensions. In March this year, it has been now given a final six-month extension to submit the report.

So often, Courts have expressed “shock” and sought responses from the Union and state home departments for measures taken to tackle the issue of poor prison conditions. One such order, taken up suo motu by the top court, was passed in March 2020 as a part of de-congestion measures for the COVID-19 pandemic. Many states released prisoners in large batches at the time, albeit temporarily.

However, one major issue and systemic failure during 2020-2021 were that the Courts did not sit and hence bail applications were simply not heard. While this was a huge lacunae in which the Executive and Judiciary both played a part –as access to justice was not regarded as part of a basic, essential commodity—the police arm of the state continued with arrests and round-ups; the courts were simply not available for bail.

Now, as the dangers of the pandemic abated, numbers have spiraled, again, in 2022. In Maharashtra, those released on temporary bail and parole have all returned to jail, taking the prison occupancy rate to a staggering 180%. In some states like Delhi and Uttar Pradesh, the occupancy rate has touched a staggering 200%. 

The annual reports of the National Crime Record Bureau are telling. They provides not just the total number of people in prisons but also provides the break-up of the caste and religious backgrounds of those who are incarcerated. While there is no consistent methodology followed in gathering information, the approximate estimate shows that over 70% of those in jail belong to the Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs). Experts say the real figure may be higher. 

https://cjp.org.in/are-women-entitled-to-special-provisions-in-prison/

Citizens for Justice and Peace (www.cjp.org.in) had done a detailed report especially on Conditions of Women Prisoners had focused on the over-crowding and utter failure of the state administration(s) to provide health care, employment, education as recommended by the Supreme Court of India and the Model Jail manual (2017).

President Murmu, herself hails from the Santhali tribe in Uparbeda village in the Baidaposi area of Rairangpur in Odisha, says it is important to know who ends up in jail. She spoke emotively of her time as MLA from Odisha whereas chairperson of the Standing Committee for Home she had a chance to visit all jails and see the condition of those inside who had absolutely no access to legal aid. During this stint, she says, she visited all prisons across the state, at regular intervals. “I was not asked to visit them. I did that of my own volition. I wanted to know who are these people, how they survive, what happens to them when in jail.” 

“They are those who don’t know anything about their fundamental rights, fundamental duties or the preamble (of the Constitution) … they are left in jail to languish for 10, 20, 30 years… in many cases the crime is as petty as having slapped another person,” she said.

As custodians of prisoners, it is the judiciary that needs to keep a close check on the condition of prisoners and ensure their rights are not violated. But judges seldom pay visits to jails. Murmu, as a governor of Jharkhand later, continued to focus on prisons. In Jharkhand too, she says, the condition was no better. While STs constitute 22% of Odisha’s population, this number is 26% in Jharkhand. In these states, however, people from these communities represent close to 30% of the prison population.

Former Chief Justice of India (CJI) N.V. Ramanna, just weeks before his retirement, had stated t a meeting of the National Legal Services Authority (Nalsa) in Jaipur, Rajasthan: “In our criminal justice system, the process is the punishment. From hasty indiscriminate arrests to difficulty in obtaining bail, the process leading to the prolonged incarceration of undertrials needs urgent attention.” 

It was the short 70 plus day tenure of CJI UU Lalit that saw the country’s attention sharply focus on the need for bail.

Before that, on July 11, 2022 a division bench of the Supreme Courtr (Justices  Sanjay Kishan Kaul and Justice M M Sundresh, re-iterated the well recognised principle of bail being the rule and jail the exception and stressed that this is not being followed properly by the country’s investigating agencies as well as the courts. The Supreme Court then asked the Central government to consider formulating a separate law to streamline the grant of bail. In its  85-page-order, issued certain directions that should be kept in mind with regard to the issue of granting bail to under trial prisoners.

Soon after D.Y. Chandrachud took charge as the CJI earlier this month, he announced that the apex court will look into bail matters on priority. At an event organised by the Bar Council of India, CJI Chandrachud said one of the reasons bail applications reach the apex court is because of the “reluctance at grassroots to grant bail”.

The CJI said, “Judges at the grassroots are reluctant to grant bail not because they do not understand crime but there is a sense of fear of being targeted for granting bail in heinous cases.” As an urgent measure, the CJI decided to distribute pending bail cases among the Supreme Court judges and the courts are now in the process of disposing of them before the Christmas holidays start in December.

Bail, however, is not the only issue plaguing the prisons and judiciary. According to data provided by the NCRB’s 2021 report, of the total 1.44 crore cases registered under the Indian Penal Code (IPC), 13 lakh cases were disposed of in the year 2020. Of the pending cases, a large chunk is constituted by old cases that are still awaiting trial. 

While the judiciary has at least identified and shown willingness to tackle the issue, the government – both at the Centre and state level – has only considered setting up more prisons in response. Soon after the change of guard in Maharashtra, Devendra Fadnavis, Maharashtra’s home minister, proudly announced that a new prison will soon be set up in Mumbai. Within the Mumbai metropolitan region, there are already five prisons but all are overcrowded. In 2019, the Union government came up with a Rs 1,800 crore plan to as many as 199 new jails across India. These decisions are taken with no clear de-congestion plans for existing prisons. 

President Murmu has now expressed serious concerns about plans to increase the number of jails. And if society is making progress, there is no place for prisons, she said. “Is this our idea of development, to build more jails?” she asked.

She ended her speech by saying that she has left some things unsaid, which the judiciary and the government should think about and understand. This was yet another indication that the problems that plague Indian prisons cannot be resolved unless these two institutions decide to tackle them together and on priority.

Related:

SC, once again, seeks DLSA intervention to ensure that under trials unable to provide surety are released from prison

Lower court judges hesitant to give bail: Chief Justice of India DY Chandrachud

Re-evaluate premature release policy for convicts serving life terms: SC to UP gov’t

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