Sunday Anchor

When the process becomes the punishment

The Supreme Court’s study of prison backlog shows that over two lakh pending trials across the country are more than five years old and 40,000 are over 10 years old. In the Supreme Court itself, 65,000 cases were found pending in end-2014. These numbers are a clear indication of the failure of the system to deliver justice. The courts are aware of this. Last June, hearing a 24-year-old petition filed by D.K. Basu on prisoners’ rights, Justice T.S. Thakur expressed anguish at the loss of human rights and liberty suffered by an undertrial prisoner. “No civilised country should torture its citizens,” observed Justice Thakur. “The true character of a democracy is adherence to the due process of law.”

Justice Thakur, tipped to be the next Chief Justice of India, also spoke in January this year at a memorial lecture in honour of senior advocate Kapila Hingorani, popularly called the ‘Mother of PILs’. Ms. Hingorani’s petition led to the landmark Hussainara Khatoon judgement in 1979, in which 40,000 prisoners, mostly undertrials, were released. “Law does not permit or tolerate inhuman treatment to suspects, undertrials or even convicts,” the judge said. The fact that undertrials continue to suffer despite the Supreme Court’s position vexes the judiciary. “The legal position is well known. Despite that, nothing is happening. Is it a case of failure of government or it is a case of the failure of judiciary?” Justice Thakur asked.

In January 2015, the then Law Minister Ravi Shankar Prasad announced that a directive would be sent to all States to release, on personal bond, undertrials who have completed 50 per cent of the jail sentence they might have received if convicted. In September 2014, the Supreme Court mobilised judicial officers across the country to visit every prison in their district over the next two months to identify and release such undertrials.

“This is not only a human rights issue for those lodged behind bars, but also a matter of great concern for our judicial system,” Mr. Prasad said.

The former Chief Justice of India R.M. Lodha has said that it is a “curious and tragic paradox that our prisons houses more undertrial prisoners than convicts. In almost all central prisons, more than 50 per cent are undertrial prisoners, in district prisons more than 72 per cent. The process itself has become a punishment. Preferably, we should set a goal that no trial exceeds three years, and no appeal from a trial takes over a year.”

In its 2013 judgment in Shatrughan Chauhan versus Union of India, the Supreme Court said, “Mercy jurisprudence is a part of the evolving standard of decency, which is the hallmark of society.”

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Printable version | Jan 14, 2021 9:38:59 PM | https://www.thehindu.com/sunday-anchor/when-the-process-becomes-the-punishment/article7019263.ece

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