An unjust law is itself a species of violence. Arrest for its breach is more so.

Mahatma Gandhi

They say that Justice in India should come to the people at their own doorsteps. People have dually criticised the Indian Legal System for not being able to deliver this notion of Justice to those who claim it to be their birth right. The reason, some say is simple, others put forward jurisprudential theories which culminated into this state of plight.

However, today I am going to make some personal observations rather than blatantly criticising those who have framed the laws or those who have executed them. During a recent visit to the Tihar Prisons, where we have a Prison Advocacy Project running in collaboration with the Jail Authorities, the statistics that were shown to us were fairly alarming. It stated that well over 67% of the total inmate population (which is about 11000 and counting) is constituted of Under Trial Prisoners i.e. people who have not yet been found guilty of an offence, people who do not have basic identification cards so that they could even validly claim that they are legitimate citizens of this country. These colossal fractions of the total population were either the village folks who live near the NCR borders or those who have migrated from other states in search of job and shelter. So what forced them to spend their lives in this miserable place? The reason is fairly simple: Because they were poor and were found out at the wrong time in the wrong place.

An inmate named Saurabh (name changed) said that he was picked up by the local police while he was on his way back from his workplace, a construction site. The poor labourer was found lingering in the outskirts of Badarpur Border and was immediately apprehended by the police officers. He was immediately turned in to a different police station which was almost 20 kms. away from where he was caught. Moments later he was produced before the local police station where the officer in charge smiled at him and checked his pockets. They found out 4oo Rupees lying in his shirt pocket. They were not ready to believe that he could actually earn those 400 Rupees and concluded that he was the person responsible for the pick pocketing which took place sometime in the early evening in some locality. And so, the constable stuffed half the amount in his own pocket and produced the poor fellow before the magistrate. And so he was lying there for the past 4 years languishing in jail awaiting his fate. Theft, under which he could be charged, mandates a punishment of up to three years. Yet, he had spent a year more than the actual term just because he could not afford to manage his bail. The truth does not end here. Many a times, the same prisoner is let off and by the time he reaches his home, he is apprehended again by the police depending upon the nature of the complaint that the police has just received.

The police is forced to do this because they have to save their skin by showing that the investigation is being effectively carried out. In reality, every police station maintains a register laying out the number of investigations which are pending against those which have been completed. The pressure from senior officers and lethargy culminates into unleashing the wrath on the poor worker who has a family of seven members to support and is away from his family and loved ones.

Another problem is that those who have already been arrested on more than one instance, notwithstanding their guilt are proclaimed to be habitual offenders. When a person is deemed to be a habitual offender, he invariably loses most of his rights that a free citizen normally enjoys. In respect of these impoverished people, the police gets blanket powers to search and seize anything from their houses at any time in the day even without a warrant on grounds of mere suspicion. The Judges while hearing the matter refuse to entertain any bail pleas as they have already been incarcerated.  Furthermore, the predilection of a judge over rules the basic premise of criminal law which we, the law students have memorised that a person is presumed to be innocent until he has been proven guilty.

The role of police does not end there. The police have a group of witnesses who testify against the accused thereby blatantly lying under oath. These people are used to help the police officers in framing up cases against the accused.

The Supreme Court has on several occasions unequivocally held that every individual who has been accused of an offence has a right to be set off on bail. But there are 2 grave hindrances in the entire process. A Bail can only be granted in two ways:  Bail with surety or Bail without surety and on personal bond. A surety is like a guarantor who pays the bond money and promises on behalf of the accused that he would appear before the court whenever he would be summoned. Whereas in case of a personal bond, anybody can get the person released on personal bond money promising the presence of the accused before the court of law.

The Judges, however charge exorbitant bond money values ranging from 10,000 to 1 lakh rupees which are beyond the means of an indigent. The rich who can afford it get away easily, while those who are poor are the ones who bear the brunt. Although theoretically speaking, a series of appeals can fairly restrict these powers, yet on pragmatic consideration, the Judges in trial court enjoy autocratic powers in matters of bail applications. When a precedent such as Moti Ram v. State of Madhya Pradesh is pleaded before them , which states that a Judge has to be humane in his outlook, while adjudicating on the fate of the accused in matters of deciding the bail amount, The Judges discard it by stating that “The facts of the instant case are not in conformity with the decision held in the case cited” thereby creating an escape route for themselves to disregard any guidelines.

It is also pertinent to note that Section 436 A of the Code of Criminal Procedure ensures that a bail has to be claimed as a matter of right and not an obligation before the court. It states that every person who has undergone more than maximum half of the imprisonment term has to be immediately released by the Magistrate on a bond with surety, and in case if he is not able to manage a surety, then he has to be released on personal bond. However, since this section is of recent origin as it came in 2005, it is not very popular amongst the law practitioners, and therefore not many use this provision to apply for bail.

This further boils down to a number of questions, viz. How would a poor migrant labour from Bengal arrange for such exorbitant amounts or in the alternative, how could he ever bring a surety in an unknown land, who could stand by him and vouch for his appearance? But questions for a more prudent consideration would be: Where lies the fault? Is it the Police, the Magistrate, The Lawyers or anybody else in the chain of events? I think, the fault lies with the accused. Because he is poor, and therefore he is regarded as a lesser son of God it is justified that he is being treated in that way.

Who do these people look up to? We, the visitors in the premise who bring out those painful memories while questioning them about the nature of the offence and the course of events which triggered it. Another narrative showed that the person has been in jail for more than four years, and the reason why he is not able to make use of Section 436 A was simply because before the completion of the maximum half term, he was let out of the jail, and then thrown inside again. The jail manual clearly states that every person has to be released before sunset. Yet deliberately, the inmates are released during the night, and by the time they are about to reach their homes, the police is eagerly waiting to nab them.

Why would lawyers take up their cases? The District Legal Service Authority only provides for Rs. 500 per case to the lawyer who represents the poor. Naturally only two categories of lawyers take such cases: Lawyers who are not good with their practice and those who have taken up these cases as part of their pro bono drive to stay in the good books of the bar. The end result is however, the same: Denial of Justice. So before I take your leave, the question which is worth looking at is: Whose fault it actually is? The Judges, The Lawyers, The Police, The Legal Service Authorities, The Accused or we the citizens of India ?

Nipun Saxena

National Law University, New Delhi

(All the views expressed in this note are not directed against any particular person or region.)