It is all about taking custodial justice seriously. That is precisely what the September Supreme Court order in Bhim Singh vs Union of India has attempted, though belatedly compared to Section 436A of the Code of Criminal Procedure, which was introduced way back in 2005. Section 436A was meant to give relief to the under trial languishing in jail for more than half the maximum period of punishment for the offence he was alleged to have committed, with the exception of offences for which death was a sentence.
The relief envisaged under the section was that such an under trial “shall be released by the court on his personal bond, with or without sureties”, or after hearing the public prosecutor and recording in writing the reasons for continued detention, or upon bail being secured instead of a personal bond.
Such a progressive legislative measure has more or less remained a dead letter for over eight years because the reactive system required someone to invoke it on behalf of the beneficiary. Was it the obligation of the prison authorities, who have the best access to custodial facts, to bring it to the notice of the courts? Or, was it the obligation of the state legal services authorities to invoke the court’s power? Or, would it be left to the mercy of the legal aid clinics run by law schools or NGOs to invoke the court’s power under Section 463A?
The three-judge bench handed down the following ruling: “We accordingly direct that jurisdictional magistrate/ chief judicial magistrate/ sessions judge should hold one sitting in a week in each jail/ prison for two months commencing from October 1, 2014, for the purpose of effective implementation of 436A.
In its sitting in jail, the above judicial officers shall identify the under trial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence… [and] pass an appropriate order in jail itself for release of such undertrial prisoners… [and] shall submit the report of each of such sitting to the registrar general of the high court… We direct the jail superintendent of each jail/ prison to provide all necessary facilities for holding the court sitting by the above judicial officers.”
The order has turned judicial officers into proactive agents, responsible for the implementation of the progressive Section 436A. But only for two months. Is this just a pilot exercise, to be followed up by a more elaborate one?
Why will such a creative initiative alone not suffice to ensure custodial justice? The answer lies in the indiscriminate, almost abusive, process of arrest that the police resorts to for some reason or the other. In the name of bandobast, arrests are made before elections. Similarly, in the name of law and order, students and political activists are routinely subjected to preventive arrests, which involve the serious erosion of custodial justice.
This is the reason that the police rarely uses provisions such as Section 169, which authorises the officer in charge to release an arrestee after executing a bond in cases in which there is insufficient evidence or lack of grounds for suspicion. But it is not only the arbitrary exercise of arrest powers that proves fatal for custodial justice. Indiscriminate police and judicial custody orders given by the lower judiciary are also a reason for the rising numbers of under trial prisoners.
This is why, at the all-India level, the proportion of under trial prisoners in 2012 was 66.2 per cent. In 2013, in Delhi alone, under trials constituted 72 per cent of the over-crowded Tihar jail. Though Section 167 explicitly lays down that in order to move or grant a remand there should be grounds for believing that the accusation or information relating to the arrest is well founded, most of the time, magistrates feel obligated to pass a judicial custody order.
Since the bulk of such under trials belongs to a socio- economic class that is not in a position to organise either bail or a proper defense, they spend half or more of their maximum possible term in prison. That is, until a creative judicial order such as the present one gives them relief. But for the hopeless and the hounded the relief is too little and too late.
The writer is former professor of law, Delhi University. express@expressindia.com
Indian Express | Sep 29, 2014
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