Perspective Dive: State of Undertrial Prisoners in India

 


One of the few perks of being empanelled by Delhi State Legal Services Authority are the duties and extra judicial tasks that are assigned to an empanelled advocate. This means that the body entrusts the advocate with some tasks that are above and beyond the work done in the court of law.

One such duty that was entrusted upon me was Jail Visiting duty. In this, empanelled advocate is supposed to visit jail premises and give free legal aid to the prisoners along with other miscellaneous tasks that needed to be performed. I was given the responsibility of Tihar Central Jail, Delhi, where I used to visit the jail premises after court hours and provide free legal aid to the prisoners of Tihar Jail as Legal Services Advocate (LSA). I find myself to be fortunate enough to have done such a work as this is something that I consider to be an eye opener for me.

Before joining DSLSA, I had no idea as to how things work in and after arrest and also in prison. I used to think that everything goes by the book, and I had no reason to suspect that theory taught to us in the law school would not be applicable in the practical part of our judicial system. But this is how a lawyer gains experience, gets to know the difference in what is taught and what is on ground. One thing I want to highlight here which I saw in Tihar jail was how the laws are abused by everyone, and by everyone, I mean not just the police but also the lawyers the clients. Everyone has a vested interest and nobody has their hands clean, but ask anyone of them about the law-and-order situation and they will say “kya hoga iss desh ka?!”. Lawyers want the case to be prolonged so they get the most out of the case in terms of monetary benefits. The client wants the case to prolong so the other party suffers from the prosecution. There are times when the victim of the crime is not actually the victim but a person with malicious intent to make other party suffer. And just like that, sometimes we also find the accused to be the real victim of the chain of events, but all he can do is try to save himself from further abuse of process.

If you are not following what is happening till now don’t worry, I will be explaining everything that has been deliberately left cryptic in this post and everything will start to make sense. I would be discussing about the types of prisoners in Tihar jail who were still in jail despite them having not committed the offence and grounds sufficient to have them grant of bail by the court. We shall be discussing the reasons of these undertrials being subjected to arrest and not being granted bail despite opportunity. We shall also be looking into one provision which I never used to consider important before my eyes were opened to realty, which deals with the release of undertrial prisoners who have already undergone detention for a maximum sentence they would have received if convicted of the offence charged with. This provision is a less known remedy to most lawyers in the field, but for me is a must know for every lawyer who wants or intends to help the criminal justice system actually become one of the best parts of our society.    

Learnings from my experience in Jail Visits  

During the times I visited Tihar Jail for various duties including jail Visiting LSA and duty In Tihar jail court Complex, I saw that most undertrials that were there for a long time, were actually the ones who were either not properly represented by any counsel in the courts or were people who were belonging to the lower strata of our society and did not know their rights and never focused on getting a bail or engaging a lawyer to be represented by in front of a bench, or both. This led me to a conclusion that legal awareness and legal literacy is very important everybody and even for a person who does not consider himself/ herself associated to legal system. Not having legal knowledge of your rights to get a bail, to live peacefully, to be represented by a counsel at all times is fundamental to defending your right to live. Again, only a few have knowledge about their fundamental rights given to them by the constitution of India and most people who do have a vague idea do not know how to use them when the time comes.

I constantly try my best to educate all people to at least know what options they have available in certain situations. They might not necessarily be inclined to avail all those options, but knowing all options will lead to an informed decision from people. Even for the undertrials, based on their cases I used to list all their options for present and future course of actions. It was not just my duty as a LSA but also a moral obligation to let them know that DSLSA will provide them with free legal aid, both in and outside the court and they need not spend money on high paying private lawyer as they can get services of LSA’s for free.

Main reasons behind most undertrials who were still imprisoned

When I ask someone question as to what they think would be the reason behind most undertrials not opting out for bail, the response I get is usually on the lines of that he must have committed a very serious offence for which he could have not been released. While this is true in some cases, its not the complete truth. There is a plethora of reasons which come up more often than the crime being a very serious one. This means that even in cases which are not of serious nature or are not against the laws relating to women and child safety or do not directly hamper social fabric of our society or are against sovereignty and integrity of our country. The main reason being giving up on the judicial system and not opting to be represented by an advocate in courts, not filing a bail application, or simply missing the opportunity to avail benefits of different types of schemes and provisions provided in our law. For example, there were many undertrials on a regular basis who visited me inside jail, who were now imprisoned for a term more than what is prescribed in the law, and had not availed benefits of default bail and other provisions. Sometimes in their cases they would think that since they filed several bail applications in the initial days of arrest and all such bail applications got rejected, they would restrain themselves from filing another till a specific amount of time has passed.

But this is not how law works. You have to move applications at the right time before the court. Not early, as it would lack maturity, and not after the moment has passed, since it no longer is a cause of action. For example, if in a case pertaining to theft a person is detained and put in jail. Now the investigating officer does not file his report before the court within stipulated time of 60 days. Now irrespective of whether 50 bail applications were rejected on the 59th day, the court will grant a default bail to the undertrial on the completion of the 60th day. If the undertrial now waits for another day (61-62nd day), and the police files the chargesheet during this time, no matter if the police are late or not, the court will look at the chargesheet and if the evidence is against the undertrial, the bail application would be rejected again.

You must act at the right time, not before, not afterwards but on the right time. This can only happen when you have someone who knows the law, looking out for you in the court. Not having an advocate and or a family member looking after the details of the case does not help the cause of such undertrials. Not communicating with an advocate that you appointed, or the family member that is looking out for you at regular intervals also does not help.

In conclusion the main reasons for such undertrials not being able to get out of jail is their lack of legal rights and inability to act or respond to situations arising out in their respective case, along with a depressed mindset of feeling trapped forever in a case, especially when they are innocent but have to prove it in court. They may think that the court will derive their innocence from their past and present conduct, but this is also not how our judicial system works. One has to make efforts to prove everything on their own. The law may say that it presumes an accused as innocent until proven guilty, but one visit to the court shall smash any such illusion for anyone. I have particularly seen this in cases of matrimonial disputes, where one party thinks that the court will automatically look at both parties conduct and will adjudge that very second that the other party is at fault and not them. I just tell them, I wish this was true, but it isn’t and therefore all of us need to do focus on making efforts to put our point across the bench and ultimately win the case so that justice prevails and faith is maintained in our judicial system.

Now that we know the details of the problem faced by the undertrials and the advocates representing the undertrials, we shall discuss a provision of BNSS which provides effective remedy to such problems in certain situations. We will be discussing about Section 479 BNSS, its origin and history and salient features of this provision.      

Section 479 BNSS: Bail for Undertrials

Background

The journey to Section 479 began with a Public Interest Litigation (PIL) initiated in 2013. The Supreme Court of India, acting Suo motu, took up the matter upon receiving a letter from former Chief Justice of India R.C. Lahoti. This letter highlighted critical issues plaguing prisons across the country, including overcrowding, unnatural deaths of prisoners, and inadequacy of trained prison staff.

In its supervisory jurisdiction, the Supreme Court has been closely monitoring the implementation of various directives aimed at improving prison conditions and safeguarding prisoners’ rights. The enactment of the Bhartiya Nagarik Suraksha Sanhita (BNSS) in 2023 marked a significant legislative development.  Within this new legal framework, Section 479 assumes particular importance.

Key Provisions of Section 479 BNSS

Maximum Detention Period:

Section 479(1) of BNSS states that an undertrial who has undergone detention during the investigation, inquiry, or trial for an offense (other than one punishable by death or life imprisonment) can be released on bail if the maximum detention period suffered by the undertrial from the time of arrest which includes time during the investigation and trial is up to one-half of the maximum imprisonment specified for that offense under the relevant law.

First-Time Offenders:

For first-time offenders or those with no prior convictions or criminal records, the provision is even more lenient.

If such an undertrial has undergone detention for a period extending up to one-third of the maximum imprisonment specified for the offense, they shall be released on bond by the Court.

However, these provisions are not automatic, meaning that one has to be vigilant enough to bee at the lookout for any of the conditions maturing for the undertrial, and a relevant application must be moved before the court of law to enjoy the benefits of the provision.  

Retrospective Application

The Supreme Court clarified that Section 479 of the BNSS has retrospective application. This means that eligible undertrials, regardless of when their cases were filed, can benefit from this provision. The Court identified two main groups who stand to gain from this provision:

1. Regular Undertrials:

  • Those who have spent at least half of their potential maximum sentence in jail.
  • This provision aims to address the problem of overcrowding in prisons.

2. First-Time Offenders:

  • Individuals with no prior convictions who have spent one-third of their potential maximum sentence in jail.
  • The Court emphasized the need for swift action and instructed jail superintendents to review cases promptly.
  • Coordination between jails and courts is crucial to process all eligible cases within three months.

Conclusion

In conclusion, I feel that a lot has to be done to impart citizens with relevant legal knowledge that shall help them fight for themselves. Also, it is very important for young lawyers to not just study bookish knowledge about a topic, rather invest time in studying the on-ground realities of our criminal justice system. Once we know what is wrong with our system, we all collectively could take better steps towards reforming this system and taking it towards perfection.

Section 479 of the BNSS represents a progressive step toward ensuring justice, fairness, and humane treatment for undertrial prisoners. By addressing overcrowding and providing relief to those who have already undergone significant detention, this provision aligns with the spirit of a modern and compassionate legal system.

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Related Blogs:

Conditions Apply: What You Need to Know About Anticipatory Bail

Compensation for Wrongful Arrests: BNSS Section 399 Explained

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Disclaimer: This Article/essay provides general information and does not constitute legal advice. Consult a qualified legal professional for specific cases.

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