It is rather disconcerting that many undertrials are lodged in jails for periods longer than the maximum term for which they could have been sentenced, if convicted.

Undoubtedly, it’s a proud moment for all of us - Indian citizens – as the nation gears up to celebrate and commemorate 75 years of her independence. On the flip side, the special remission announced by the Union Government, holds a ray of hope for several prisoners, especially undertrials, lodged in various jails across the country.

The following categories of prisoners (without counting the period of general remission earned) are eligible for special remission in three phases - 15 August 2022, 26 January 2023 and on 15 August 2023. 1) women convicts aged 50 years and above who have completed 50 per cent of their total sentence period, 2) transgender convicts aged  50 years and above who have completed 50 per cent of their total sentence period, 3) male convicts aged 60 years and above who have completed 50 per cent of their total sentence period, 4) physically challenged/disabled convicts with 70 per cent disability and more (duly certified by a medical board) who have completed 50 per cent of their total sentence period, 5) terminally ill convicts (duly certified by a medical board), 6) convicted prisoners who have completed two-third (66 per cent) of their total sentence period, 7) poor or indigent prisoners who have completed their sentence but are still in jail due to non-payment of fine imposed on them by waiving off the fine, 8) persons who committed an offence at a young age i.e. between 18 and 21 years and with no other criminal involvement/case against them, who have completed 50 per cent of their sentence period.

Some States have reportedly finalised the list of persons under the special remission initiative. While Assam is set to release 18 prisoners, Maharashtra and Kerala are to free 214 and 33 prisoners respectively.

Undertrial prisoners (UTPs), defined as persons who are currently on trial/who are imprisoned on remand/awaiting trial in a court of law can be classified into three types. They are persons who are being tried for:- (1) non-bailable offences, in respect of whom the courts have declined to pass an order for their release on bail; (2) non-bailable offences, in respect of whom courts have passed order for bail but, who, because of difficulty in finding appropriate surety or because of some other reason, do not furnish the bail bond and (3) bailable offences, but who, because of the difficulty in finding appropriate surety or because of some other reason, do not furnish the bail bond.

According to official statistics, there are 3,71,848 of UTPs as on 31 December 2020 which is an increase of 11.7 per cent when compared to the previous year. While 50 per cent of total UTPs (1,86,089 persons) were lodged in District Jails, 36 per cent (1,34,322 persons) in Central Jails, over 12 per cent (44,402 persons) in Sub-jails. Out of 2,83,556 UTPs, nearly 65.6 per cent of them (1,86,114 persons) are said to have committed offences affecting human body, followed by 27.3 per cent of them (77,531 persons) of offences against property. Among 88,282 UTPs being held for offences under Special and Local Laws, 60 per cent of them (53,369 persons) have been booked under Liquor and Narcotics Drugs related laws, 15 per cent (13,463 persons) under Arms/Explosive related laws and 5 per cent (4,394 persons) under SC/ST related Acts. Around 71.2 per cent of total UTPs (2,64,636 persons) were confined for periods up to 1 year, 14.6 per cent of them (54,287 persons) for 1 to 2 years, 7.9 per cent (29,194 persons) for 2 to 3 years, 4.5 per cent (16.603 persons) for 3 to 5 years and 1.9 per cent of them (7,128) for more than 5 years.

That in the recent past, support for the early release of UTPs has been growing from those in the higher echelons of authority and power is laudable. For instance, Prime Minister Mr Narendra Modi, while addressing the first All India District Legal Services Authorities Meet, this July 30, urged the judiciary to speed up the release of UTPs languishing in various jails awaiting legal aid. Further, he also said that ease of justice was as important as ease of doing business and ease of living. Expressing concern that in this “azadi ka amrit kal”, there are 3.5 lakh UTPs, Union Law and Justice Minister Mr Kiren Rijiju has asked the authorities to release the maximum number of UTPs by this August 15. On various occasions, Judges of the Supreme Court of India including Chief Justice of India N V Ramana, have been advocating the need for increasing the efficiency of our criminal justice system. The CJI has consistently maintained that “from indiscriminate arrest to difficulty in obtaining bail, the process leading to prolonged incarceration of UTPs needs urgent attention”.

Notably, the Supreme Court, nearly 43 years ago, during the hearing in the Hussainara Khatoon and others Vs Home Secretary, State of Bihar, observed, “the primary principle of criminal law is that imprisonment may follow a judgment of guilt, but should not precede it. There is  also another principle which makes it desirable to  ensure that  the accused is present to receive his sentence in the event of being found guilty…It is indisputable that an unnecessarily prolonged detention in  prison of undertrials before being brought to trial is  an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock  of a  civilized legal  system  must  view with distress  patently   long  periods  of imprisonment  before persons awaiting  trial can  receive the  attention  of the administration of justice… Sometimes the Magistrates also refuse to release the undertrial prisoners produced before them on their personal bond but insist on monetary bail with sureties, which by reason of their poverty the undertrial prisoners are unable to furnish and which, therefore, effectively shuts out for them any possibility of release from pretrial detention”.

UTPs received a shot in the arm with the enactment of the Code of Criminal Procedure (Amendment) Act, 2005, whereby it became possible for a petitioner to approach the judiciary, invoke Section 436A and press for his grant of bail. That is, when the concerned UTP has already undergone half of the period of the maximum sentence which the said offence carries, he could be released on bail, except in an offence which carries death sentence. Apparently, Section 436A is intended to decongest the jails by extending the above said benefit of grant of bail to such UTPs who had already undergone more than one and a half period of the total sentence in jail which an offence carried. In line with Union Government advisories, Under Trial Review Committees, headed by the District Judge and having the District Magistrate and the District Superintendent of Police as members are in place in all Districts of the country for the purpose of implementation of Section 436A.

The National Legal Services Authority (NALSA),  established in 1995 and headed by the senior most Judge of the Supreme Court along with subsequently formed State Legal Services Authority, headed by the Chief Justice of the respective High Court and District Legal Services headed by the District Judge of the respective District have been providing free legal services to women and children, members of SC/ST, industrial workmen, victims of mass disaster, violence, flood, drought, earthquake, industrial disaster, disabled persons, persons in custody and for persons whose annual income does not exceed Re one lakh.

The number of court halls across the country has increased from 15,818 in 2014 to 20,993 as on 30 June 2022. About 19,000 District and Subordinate Courts are computerised with internet facility made available to nearly 99 per cent of court complexes. The general public can access 21 crore cases and 18 crore order/judgments. Video Conferencing facility has been enabled between 3,240 court complexes and 1,272 corresponding jails. Twenty virtual courts set up in 16 States/UTs to try traffic offences have handled more than 1.69 crore cases and realized more than Rs. 271.48 crore in fines. During the last 8 years, 46 judges have reportedly been appointed in the Supreme Court, while 769 new judges were appointed and 619 additional judges were made permanent in the High Courts. 728 Fast Track Courts, including 408 exclusive POCSO Courts are functional for heinous crimes, crimes against women and children etc.

Studies have shown that being around hardened criminals can turn first-time or circumstantial offenders into full-fledged criminals. In some countries, one in seven prisoners are diagnosed with psychosis or depression and notably, more people with severe mental illness are in prisons than in psychiatric hospitals. The cause for concern is that if these disorders are not properly diagnosed and treated in a time bound manner, it can increase the risk of suicide, self-harm, violence and victimisation. 

Considering the adverse impacts of overcrowding, unhealthy living conditions, mental illness, drug abuse, social stigmatisation and most importantly the compounded 
risks of prolonged incarceration, higher courts can take the lead in underscoring the right to bail for UTPs in genuine cases.

As keeping persons in jail for long period of time, can result in high rates of psychiatric disorders, there is an imperative need for continuing special remission initiatives to prevent overcrowding of prisons.