Ease of justice wanted for undertrials

Notwithstanding the recommendations of various commissions and committees, as also directions of the Supreme Court from time to time, the number of undertrials has been swelling year after year. The Law Minister recently talked of more than 3.5 lakh undertrial prisoners languishing in jails. In the early eighties, the National Police Commission had reported that 60 per cent of the arrests made by the police were unnecessary or unjustified.

Irony: Though the law mandates that arrest should be need-based, cops continue to make arbitrary and needless arrests. PTI

Prakash Singh and KP Singh

Former DGP, UP and Ex-DGP, Haryana

The Prime Minister, while addressing the inaugural session of the first All-India District Legal Services Authorities on July 30, expressed concern over undertrial prisoners languishing in jails for want of legal advice. He urged the judiciary to speed up the process of their release. He emphasised that ease of justice was as important as ease of living and ease of doing business.

The Supreme Court, on August 5, asked the Centre to think ‘out of the box’ and consider dropping trial proceedings against those who are involved in not very serious offences and have already spent one-third of the maximum sentence.

Earlier, on July 11, the court had observed that in a democracy, there should never be an impression that it is a police state. It recommended that “there is a pressing need” to reform the laws on bail, considering that jails in the country are flooded with undertrial prisoners and the majority need not even have been arrested despite the registration of a cognisable offence. It went on to say that arrest was a draconian measure, resulting in curtailment of liberty and, as such, should be used sparingly.

The total prison population of the country, according to the National Crime Record Bureau figures for 2020, was 4,88,511. The comparative figure for the USA, according to the World Prison Brief, was 20,68,800 and 16,90,000 for China.

The rate of prison population (prisoners per one lakh) for India works out to 35 while for the USA it is as high as 629 and for China 119.

In terms of pre-trial detainees, however, the US figures are much better at 23.3 per cent only. China’s figures are not known, but should be very high. In India, it is 76.1 per cent, which is a cause for serious concern.

Notwithstanding the recommendations of various commissions and committees as well as directions of the Supreme Court from time to time, the number of undertrials has been swelling year after year. The Law Minister recently talked of more than 3.5 lakh undertrial prisoners languishing in jails. In the early eighties, the National Police Commission had reported that nearly 60 per cent of the arrests made by the police were either unnecessary or unjustified.

The Supreme Court, in the Joginder Singh case (1994), clarified that the power to arrest is different from the need to arrest. The law mandates that arrest should be need-based only. The National Human Rights Commission, in its guidelines on arrests issued in 2000, prescribed that arrests should be resorted to keeping in view a person's complicity as well as the need to effect arrest. It cannot be justified merely because the police have the power to arrest without warrant.

The United Kingdom witnessed a similar phenomenon of large number of prisoners incarcerated without trial. The Royal Commission (1962) was thereupon tasked to suggest remedial measures. It recommended that arrest should not be necessary for taking fingerprints or for seeking the presence of a person for the purpose of interrogation or conducting a test identification parade. In most other cases, ‘appearance notice’ could be issued to ensure the attendance of a person at the police station. The UK enacted the Bail Act in 1976 which codified the procedures involved in the grant of bail. “Reducing the size of the inmate population” was one of the aims of the legislation.

The Malimath Committee on Reforms in the Criminal Justice System also recommended that no arrests should be made in offences punishable only with fine or offences punishable with fine as an alternative punishment.

Subsequently, Section 41 of the Criminal Procedure Code (CrPC), authorising the police to arrest without warrant, was amended in 2009. The concept of ‘appearance notice’ was introduced in India also in place of arrest for the purpose of seeking attendance of a person for questioning. It was made mandatory for the police to justify the need for arrest, citing reasons. The amendments have, however, not yielded the desired results.

It is interesting to recall that in the wake of amendments to Section 41 of the CrPC in 2009, lawyers all over the country had gone on strike.

The Indian Police Foundation, a think tank of distinguished persons from different walks of life, organised a workshop on ‘The Law and Practice of Arrests’ on July 30. The discussions brought out that the mindset of stakeholders in the criminal justice system is the main reason for the unnecessary arrests.

It is also a fact that police officers quite often abuse their power of arrest and magistrates are generally indifferent towards taking cognisance of unnecessary arrests by the subordinate police officers.

According to psychologists, this mindset is a byproduct of age-old practices and the organisational sub-culture. It must change and, for that, it may be necessary to limit the discretionary powers of the police, ensure strict supervision, give deterrent punishment to the delinquents and have rigorous judicial oversight.

In the Arnesh Kumar case, the Supreme Court has already fixed the onus on the magistrates to ensure that no person is needlessly arrested.

Pendency of cases has a direct impact on the number of persons inside jails. The Law Minister recently gave very disturbing figures of cases pending in courts at different levels. These are: Supreme Court — 72,062; high courts — 59,45,709; district and subordinate courts — 4,19,79,353. The judiciary must set its own house in order.

The Tokyo Rules (1990) for non-custodial measures prescribe that pre-trial detention shall be used as a last resort and alternatives to pre-trial detention should be employed as far as possible.

In our criminal justice system, as admitted by Chief Justice NV Ramana, “the process is the punishment”. This must stop. Arbitrary and needless arrests must end and appropriate measures should be initiated to speed up the release of undertrials without any further delay.