OPEN PAGE

Custodial `loss of life'

OUR JUDICIAL system is loaded in favour of the accused based as it is on the following principles:

(a) every accused is presumed innocent until proven guilty,

(b) many guilty may be acquitted but even one innocent should not be convicted (the golden principle), and

� the slightest doubt about guilt should, therefore, benefit the accused.

These principles are often cited by the police as reasons for the low rate of conviction (ignoring poor or motivated investigation). Laws against corruption and terrorism try to shift the burden of proof partially to the accused.

But there is one aspect of the system which appears unfair to all accused and to some extent even to the guilty. That is the jailing of undertrials. Hundreds of undertrials are languishing in our jails for years awaiting the completion of trial which even in criminal cases may take years. The time spent in jail by the acquitted is irrecoverable "loss of life." Those who are sentenced to imprisonment for lesser periods than the period spent as undertrials have suffered additional imprisonment unrelated to conviction. Those sentenced to periods of imprisonment longer than the custody period are actually better off than even those acquitted as the latter period is set off against the former! Is undertrial custody, then, avoidable?

Such custody arises in non-bailable cases where bail is refused by courts, mostly based on police opposition. Common circumstances under which bail is opposed are:

* fear of the accused absconding,

* fear of the accused tampering with the evidence,

* past criminal record of the accused,

* as part of a political vendetta,

* when the offence is heinous or the accused highly placed, there is considerable media build-up, and the government wants to avoid appearing biased or lenient, even though facts may not warrant custody.

One could argue that, after all, the police can only make a request and it is for the courts to grant bail or not. In practice, the courts do not have much choice. The police usually charge the accused with the gravest possible non-bailable offence with the available prima facie evidence and invariably claim that bail would interfere with the investigation. (Unfortunately, unlike cloutless citizens, rich and powerful persons have ways of getting their things done even without getting out of jail!). Moreover, courts are not totally immune from media and public pressures.

In the past when powerful politicians and businessmen were the accused in scams and corruption cases, magistrates almost routinely refused bail in most cases for fear of being perceived by the public and the media as being biased. Unfortunately, because rude, unhelpful, often unlawful treatment of ordinary citizens by the police is common in our country, even a strictly lawful, legitimately reasonable treatment of a rich and powerful accused is perceived by the public as evidence of corrupt favouritism.

Since there is a widely-held, not unjustified, perception that the rich and the powerful rarely get convicted, citizens feel happy, golden rule or no golden rule, that at least during trial such persons go to jail! Even so, courts must insist on compelling and credible prima facie evidence before turning down bail applications and not be overawed by alarmist police versions. When custody is unavoidable, it must be for the absolutely minimum necessary period based on rigorous norms of efficient, expeditious investigation.

When undertrial custody is unavoidable, can its rigours be mitigated? Merely because someone has accused me of a non-bailable offence, why should my normal standards of living and liberty be drastically circumscribed? Why should I share a jail with the already convicted?

There are instances of VIP accused being kept under house arrest or in a guest house. Against the view that such preferential treatment to some accused violates the principle of equality before law, the contrary view is that such facility should be available to all accused. Why not have special custody centres where the same, decent, middle class living facilities and supervised but minimally controlled access to their family and friends are available to all the accused so that they do not feel being already imprisoned? All this will, of course, cost more money and effort but without it the principle of presumed innocence of an accused cannot be honoured in letter and spirit.

Our low conviction rate itself indicates that the majority who suffer such custody are acquitted. Some activists oppose capital punishment even to a serial psychopath killer who rapes and murders children, but no one seems bothered about the custodial `loss of life.'

P.K. DORAISWAMY

Recommended for you