By Kunal Basu:
Diwali is the season of transition from darkness into light, from despair into hope and ultimate deliverance from injustice. A true ‘sadgati’ (liberation) in itself.
Bollywood has immortalised Diwali against a plethora of scenic settings. “Prem Qaidi” (1991) converted the excesses of jail life into a fictionalised love narrative. Even post-independence movies such as “Bandini“ (1963) and “Bandit Queen” (1994) have successfully translated the excesses of life in Indian jails into a romanticised telling of seeking justice post-prison release.
That’s only the theoretical part of it. In practicality, the truth is something entirely bitter, especially with reference to our criminal justice system.
Under Article 21 of our Constitution, the right to life includes the right to a speedy trial. However, this is an entirely laughable and illusory constitutional promise. As per official 2015 Government records, it is estimated that there are some 282,076 undertrial inmates languishing behind bars.
Bitter although it may sound, this is unfortunately the harsh truth. It appears that official records are well attuned towards Henry David Thoreau’s parting words, “Justice is sweet and musical, but injustice is harsh and discordant.” I wholly concur that every proved murderer, sexual or serial offender must be harshly sentenced by the courts, so that retributive justice is seen to prevail upon the family of the injured aggrieved party. But why should this judicial pronouncement be extended to convicts who have been incarcerated for a long time for minor offenses such as shoplifting, petty larceny and the like? Is this not legal and constitutional injustice of the highest accord?
There are men and women who are incarcerated in Tihar Jail for over 30 years. Many of these unfortunate prisoners have families and young children, whom they hope to be reconciled with one day. There are also many prisoners from poverty-struck backgrounds awaiting a fair trial. But owing to the lengthy procedural formalities of our criminal trial system, their hopes are dashed to the ground against the stark reality of eternal imprisonment, as judicial hearings are constantly deferred to contingent dates with no set guarantee of the same ever happening.
Being a lawyer, I can very well understand the trauma and grievance their families go through, when they are faced with societal stigma. These families did not deserve to be humiliated. Or treated as deviant castaways, just because they are connected to the accused offender. It is thus not a sudden shock or surprise that loss of job, constant badmouthing, and uncomfortable questions faced from society, all coupled with ultimate depression of jail life often leads many families and convicted offenders to commit suicide.
Despite the Supreme Court guidelines in ‘Hussainara Khatoon vs. State of Bihar’ (1979) AIR 1369 decreeing that every arrested person be provided free legal aid under Article 39A of our Constitution, no steps have been taken to implement the same. Likewise, many prisoners are put into solitary confinement for many years without any fellow convicts as companions. Although this is in strict violation of Supreme Court orders in ‘Sunil Batra vs. Delhi Administration’ (1978), yet the truth is that this practice is a harsh reality. It is not surprising that many prisoners choose to take their own lives, as they are devoid of basic amenities in jail life like convict companionship (except where they are hardened criminals) and a severe disconnect from their families.
Though Section 12(1)(g) of the Legal Services Authorities Act (1987) guarantees legal aid where a person is committed to judicial custody, its proper enforcement is yet to see the light of the day. As a consequent result, many arrested persons are incarcerated for many years, even before commencement of the actual trial itself.
As per Article 22 of our Constitution and Section 50 of Criminal Procedure Code(1973), every person has the right to have an advocate present at time of his arrest. Yet, there are many instances wherein the police themselves have violated this legal statutory provision. The recent instance at Kasna Jail this year, where a video captured Noida police exhibiting overt brutalities upon prisoners is evidence that the authorities are least concerned in enforcing the law and instead, extracting confessions from prisoners using third-degree methods in violation of Section 24 of the 1872 Indian Evidence Act. The NHRC report dated on August 5, 2016 seems to have made a clean sweep of this by releasing a report on the ‘mysterious’ death of the convict, rather than investigate the same and punish the guilty.
Under the 1894 Prisons Act, Section 15 mandates that a medical report be made regarding the death of a prisoner with particulars such as exact nature of illness. Likewise, Section 17 states that a duty is cast on the jailor to inform the Superintendent of Police the moment a prisoner dies. Sections 40 of the 2000 Delhi Prisons Act mandates that every prisoner is entitled to meet a legal practitioner. However, given the nature of surprise raids by the police without securing an arrest warrant from a Magistrate and police third-degree confessional techniques even today, it has been well-ensured that an accused be stripped of his legal right to counsel, rather than enforcing the same. What a travesty of law and justice!
Justice can only be done where the State acts more towards protecting the fundamental rights of the convicts by affording them efficient lawyers under Section 304A of the 1973 Criminal Procedure Code. Not using arbitrary confessional techniques and denying these convicts access to a lawyer. Or playing checkmate over the sanctioned strength of trial and upper-judiciary judges.
It is time we took a stand to brighten these prison inmates lives. We need to promote legal aid services where it is possible. Although bail cannot be really claimed as a matter of legal right as per ‘Rasiklal vs. Kishore Khanchand Wadhwani’ (2009) Civil. SLP No: 4008, it is time the State authorities turned a considerate eye towards granting bail to aged and old prisoners serving over 10 years in jail a reality. Likewise, if the judiciary strength was increased and criminal trial procedures followed, that would probably be a first towards marching the extra mile for securing legal and judicial justice.
As of now, that seems a far-fetched reality. But let’s try to make it one.