Prisoners of process: Decongestion schemes fall short of expectations

Union Home Minister Amit Shah’s statement on releasing on Constitution Day undertrial prisoners who have served more than a third of the maximum prescribed sentence for the crime they have supposedly committed is a well-meaning attempt to decongest India’s notoriously overcrowded prisons. But much would depend on jail authorities’ ability to compile and process lists in less than a week. The sheer magnitude of the task is daunting. According to the National Crime Records Bureau, undertrials comprise 75 per cent of India’s prison population, which has risen 41 per cent since 2017. This situation prevails in spite of efforts to ease congestion in jails for the past 19 years.

 

For instance, Section 436A of the Criminal Procedure Code, introduced by the United Progressive Alliance government in 2005, stipulated that undertrials (other than those who have committed offences attracting the death penalty) who had undergone detention for a period extending up to half the maximum period of imprisonment specified for that offence be released by the court on a personal bond with or without sureties. With little progress till 2009, then Chief Justice of India K G Balakrishnan had also instructed chief judicial magistrates to ascertain the number of undertrials booked for petty offences and immediately release those who had served more than half their sentences on their personal bond. Again, the progress was snail-paced mainly because most undertrials could not afford bonds or sureties. To this end, the Narendra Modi government had announced a scheme last year to offer financial support to prisoners who cannot afford bail. The scheme provides financial aid of up to Rs 40,000 for undertrials and Rs 25,000 for convicts, based on the approval of the empowered committee chaired by district collectors. But a study by IndiaSpend published in November and based on “Right to Information” responses from six states showed only Maharashtra had released 10 undertrials and one convict through the scheme.

 

Overall, the approach of the laws and the courts has been progressive. Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaced the Criminal Procedure Code, repeated the provisions of its predecessor law and also allowed first-time offenders to be released on bail after they have spent one-third of their sentence in prison. The section also empowers the superintendent of jails to send an application to court if half or one-third of an undertrial’s sentence has elapsed. In August this year, the Supreme Court ordered that Section 479 of the BNSS be applied retrospectively to cases registered against first-time offenders even before the law came into effect on July 1, 2024. The court also ordered all states and Union Territories to file affidavits within two months, detailing the number of undertrials who would be entitled to Section 479 benefits. Till October, only 19 states out of 36 (including Union Territories) had filed reports.

 

At least part of the problem is the discretionary nature of the decision-making process, which relies on a presiding judge or magistrate, a perpetual challenge in a notoriously congested justice system. The inadequacy of trained prison staff, which contributes to the appalling brutality and chaos in prisons, also hinders the process of identification. Urgently streamlining the process may be one way to turn Mr Shah’s gesture into genuine relief for India’s undertrials.