It is a shocking reflection on the flaws in our criminal justice system that less than one out of three people lodged in Indian jails is a convict. The vast majority of the prison population, as many as about 2.5 lakhs or 70 per cent, is made up of undertrials awaiting justice. As Prime Minister Manmohan Singh told the conference of Chief Ministers and Chief Justices, many of them have been in jail “for periods longer than they would have served had they been sentenced.” The Law Commission of India’s 78th report on the “Congestion of undertrial prisoners in jail,” submitted in 1979, also has a topical feel about it. The situation today is not unlike what it was then — people languish in jail for the want of resources to seek bail, for the lack of proper legal aid, and the hopelessly sluggish pace at which the judicial system moves. Coupled with this is the presence of a police force that seems less interested in securing convictions than in making summary arrests, effectively using custody as a form of preventive detention. If the problem of undertrials has proved so intractable, it is because it is a manifestation of fundamental and deep-rooted flaws in the criminal justice system.

The immediate task is to identify those who are eligible for bail and ensure their release. Under the Code of Criminal Procedure (Amendment) Act 2005, those accused of offences for which the death penalty is not prescribed are entitled to be released if they have been in detention for more than half the stipulated period of imprisonment. Also, the majority of the undertrial population is behind bars for petty offences and, by the Centre’s admission, “is under lock up in the absence of trial.” Chief judicial magistrates have been asked by Chief Justice of India K.G. Balakrishnan to identify such cases and it is imperative that this exercise is carried out expeditiously so that these undertrials can be released on personal bonds. A more serious look at plea bargaining, introduced by the 2005 amendment for cases where the sentence is less than seven years, is called for. This could benefit many undertrials languishing in jails. However, such immediate measures can address only a part of the problem. The fact that there is such a vast population of undertrials is closely linked to a larger issue — that of the lethargic pace of the criminal justice system, reflected in the world’s biggest backlog of pending cases. Dr. Manmohan Singh hit the nail on the head when he urged that “the expeditious elimination of this scourge… should constitute the highest priority for all of us.”

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