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Make laws, but have heart

Make laws, but have heart
While writing the judgment in Thana Singh Vs. Central Bureau of Narcotics the apex court observed that the laxity with which we throw citizens into prison reflects our lack of appreciation for the tribulations of incarceration; the callousness with which we leave them there reflects our lack of deference for humanity. It also reflects our imprudence when our prisons are bursting at their seams. For the prisoner himself, imprisonment for the purposes of trial is as ignoble as imprisonment on conviction for an offence, since the damning finger and opprobrious eyes of society draw no difference between the two. The plight of the under trial seems to gain focus only on a solicitous inquiry by this Court, and soon after, quickly fades into the backdrop.

Last week the Supreme Court in a landmark judgment on a Public Interest Litigation for release of all Pakistani/foreign prisoners who have completed their sentences or served out jail term equal or more than the actual sentence they would have been awarded if sentence in the respective offences languishing in Indian jails,  ordered the country’s notoriously overcrowded jails to free all inmates who have served half their maximum term without trial, with potential implications for hundreds of thousands of prisoners. More than two-thirds of India’s nearly four million prison inmates are awaiting trial, according to Amnesty International, many having already spent years in prison. India’s criminal procedure code section 436A already states that prisoners in pre-trial detention must be released once they have served half the maximum sentence they would receive if found guilty, but the law is rarely implemented.

Chief Justice R.M. Lodha ordered that prisons across the country must comply with the law, and local judges and magistrates to oversee the process. ‘Judicial officers shall identify prisoners who have completed half of the maximum period of imprisonment provided for offences they are charged with,’ he said. ‘After completing the procedure they should pass appropriate orders in the jail itself for the release of under trial prisoners.

With this order more than two lakh under trails will be out of jail soon who have spent half of the maximum sentence prescribed for the offences they are charged with. The court asked the trial court judges to allow them to be out of jail on personal bond with or without any surety which means the accused will have to remain out on bail and face the trial. The apex court made it clear that there is no need for lawyers to be present while judicial officers take decision for release of prisoners and asked the judicial officers to file compliance report with the Registrar General of concerned high court after finishing the assignment. The other highlight of the order was that bench rejected the Centre’s suggestion of involving the high courts, calling it ‘not workable’, and said that local judges and the magistrate would pass the order straight away.

The role of the Supreme Court in introducing jail reforms has been commendable. Its quest for prison justice is probably a result of its attempt to revive liberty after extinguishing it in the Habeas Corpus case. In fact, the Supreme Court had commented in that case during the emergency that the treatment meted out to the detainees was almost mater-nal.

The Supreme Court carried the ratio of the Habeas Corpus case ADM Jabalpur Vs. Shiv Kant Shukla that Article 21 is the sole repository of life and liberty and during the emergency when liberty is suspended, due to the Presidential proclamation suspending Article 21, to the Prison conditions and held in Bhanudas’s case that a detainee during emergency could not agitate for better jail conditions and facilities.

Maneka Gandhi’s case was a landmark in Indian jurisprudence. The Maneka principle was extended to prison conditions and particularly to the plight of under-trials in Bihar about the continued incarceration in jails. Some of them were never produced before the courts. Some others had spent more time in jails as under-trials than the maximum penalty that could be imposed upon them if they were convicted of the offences they were charged with.

The Supreme Court directed the Bihar Government and the Patna High Court to furnish to the Supreme Court details of criminal cases pending in Bihar and their year wise breakup. The Supreme Court thereafter directed the release of such under-trials who were in detention for a unduly long period. The Supreme Court again in writ petition filed by Sunil Batra and Charles Sobharaj, two prisoners in Delhi’s Tihar jail, made an effort to humanise jail conditions.

The question before the court was: ‘Does a prison setting, ipso facto, outlaw the rule of law, lock out the judicial process from the jail gates and declare a long holiday for human rights of convicts in confinement? The Supreme Court held that there is no total deprivation of a prisoner’s rights of life and liberty. The ‘safe keeping’ in jail custody is the limited jurisdiction of the jailer. ‘To resort safe-keeping into a hidden opportunity to care the ward and to traumatize him is to betray the custodian of law, safe custody does not mean deprivations, violation and banishment.

The Apex court when congratulated for this landmark judgment on human rights of under trails, the bench commented, ‘It’s just a beginning’.

The author is an advocate
Vikas Gupta

Vikas Gupta

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