By Kirrat Sachdeva and Mayank Jain:
In cramped prison cells which can lack electricity, food, as well as hope, the destinies of hundreds of thousands of people in India lay bound by the trials they await for years.
According to the law, they are innocent until proven guilty, but they are in effect already being punished. The government admits that most of them are poor and voiceless, and awaiting trial for minor offences.
The fact that these people end up spending a sizeable portion of their lives in jail just waiting for judgement is a matter that can’t be put on the backburner anymore.
Who is an undertrial prisoner?
More than 250,000 people — over 66% of all prisoners in India – are undertrials.
An undertrial prisoner is someone who has been detained in prison during the period of investigation, inquiry or trial of a case. Some undertrials may be granted bail, but remain in prison because they cannot pay the bail bond or provide a surety (a person to guarantee that they will attend future court hearings).
Having too many undertrials in detention overcrowds jails and burdens state resources. Arbitrary arrests, slow trials, and inadequate legal aid exacerbate the problem.
The government enacted Section 436A of the Criminal Procedure Code (CrPC) to deal with the problem of prisoners spending long years in prison awaiting trial. Under this section, any undertrial prisoner who has been in prison for over half of the maximum term prescribed for the offence they are accused of can be released on a personal undertaking that s/he will attend future hearings. This section does not apply to those prisoners accused of offences for which the death sentence can be imposed.
What is a personal bond?
A personal bond is a formal agreement by which an undertrial undertakes to regularly attend court hearings, without being required to pay a bail bond.
Cases ineligible under Sec 436A
Certain offences which can attract the death sentence cannot be considered under section 436A for release on a personal bond. These include cases of murder, kidnapping, and rape leading to injury which causes death.
Important Note: When an undertrial is eligible for release under Section 436A CrPC, a court can order his release on personal bond, with or without sureties. However, in no case can a person be detained beyond the maximum period of imprisonment prescribed for the offence.
Prisons are meant for those convicted of crimes, or for detainees likely to commit a crime, tamper with evidence, or abscond. Undertrial detention should be used as an exception, not as a default.
Oscar Wilde rightly said that every saint has a past and every sinner, a future.
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