Mumbai: “These days I hear that we need to set up more jails. Why do we need them? If we are moving ahead as a society, if we are making progress, why do we need more jails? Should we not be, in fact, closing down the existing ones?” asked President Droupadi Murmu last week at the valedictory session of the Law Day celebrations organised by the Supreme Court. These were the closing lines of a nine-minute speech in which she touched upon her experiences visiting prisons when she was an MLA of Odisha and later the governor of Jharkhand.
Her speech raised several crucial problems – overcrowding of jails, the social identity of those languishing in prisons and prolonged pretrial detention. The president didn’t mince her words. Judges of the Supreme Court and high courts, as well as the Union law minister Kiren Rijiju were among the audience. She wanted them to deliberate on the issue and come up with a solution. “The executive, the legislature and the judiciary will have to come together and find a solution,” she added.
Following Murmu’s speech, a bench of Justices S.K. Kaul and Abhay S. Oka, on Tuesday, November 29, directed the state jail authorities to submit details of prisoners who have been languishing in jail even after securing bail. As per the court’s direction, the details have to be first sent to the respective state governments, who will then forward the documents to the National Legal Service Authority within 15 days.
In the past decade, the Supreme Court and high courts have, on multiple occasions, raised the issue of overcrowding and the need to decongest prison spaces across India. But much of the courts’ observations and directions have remained at the judicial level. Efforts to decongest have been abrupt and have largely proved inadequate. As of today, 6,05,600 prisoners are crammed inside 1,378 prisons which are meant to accommodate 4,25,609 prisoners.
In the landmark Re-Inhuman Conditions In 1382 prisons, the apex court in 2016 directed state governments to take necessary measures to urgently decongest prisons. As one of the immediate outcomes, a committee on prison reforms, headed by former Supreme Court Justice Amitava Roy, was set up. Though the committee was set up in 2018 and was asked to provide recommendations within 12 months, it was given several extensions. In March this year, it was given a final six-month extension to submit the report.
Courts have time and again expressed “shock” and sought responses from the Union and state home departments for measures taken to tackle the issue of poor prison conditions. One such order, taken up suo motu by the top court, was passed in March 2020 as a part of decongestion measures for the COVID-19 pandemic. Many states released prisoners in large batches. But come 2022, the numbers have gone up again. The same pandemic is used as a ground for the increase in the prison population. In Maharashtra, those released on temporary bail and parole have all returned to jail, taking the prison occupancy rate to 180%. In some states like Delhi and Uttar Pradesh, the occupancy rate is almost touching 200%.
The annual report of the National Crime Record Bureau provides not just the total number of people in prisons but also provides the break up of the caste and religious backgrounds of those who are incarcerated. While there is no consistent methodology followed in gathering information, the approximate estimate shows that over 70% of those in jail belong to the Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs). Experts say the real figure may be higher.
President Murmu, who hails from the Santhali tribe in Uparbeda village in the Baidaposi area of Rairangpur in Odisha, says it is important to know who ends up in jail. “They are those who don’t know anything about their fundamental rights, fundamental duties or the preamble (of the Constitution) … they are left in jail to languish for 10, 20, 30 years… in many cases the crime is as petty as having slapped another person,” she said.
Murmu, as an MLA in Odisha, was made the chairperson of the home standing committee. During this stint, she says, she visited all prisons across the state. “I was not asked to visit them. I did that of my own volition. I wanted to know who are these people, how they survive, what happens to them when in jail.”
In her role as a member of the home standing committee, President Murmu did something that the judges ought to do at regular intervals within their jurisdictions. As custodians of prisoners, it is the judiciary that needs to keep a close check on the condition of prisoners and ensure their rights are not violated. But judges seldom pay visits to jails. Murmu, as a governor of Jharkhand later, continued to focus on prisons. In Jharkhand too, she says, the condition was no better. While STs constitute 22% of Odisha’s population, this number is 26% in Jharkhand. In these states, however, people from these communities represent close to 30% of the prison population.
Former Chief Justice of India (CJI) N.V. Ramana, just weeks before his retirement, said at a meeting of the National Legal Services Authority (Nalsa) in Jaipur, Rajasthan: “In our criminal justice system, the process is the punishment. From hasty indiscriminate arrests to difficulty in obtaining bail, the process leading to the prolonged incarceration of undertrials needs urgent attention.”
After D.Y. Chandrachud took charge as the CJI earlier this month, he announced that the apex court will look into bail matters on priority. At an event organised by the Bar Council of India, CJI Chandrachud said one of the reasons bail applications reach the apex court is because of the “reluctance at grassroots to grant bail”.
He said, “Judges at the grassroots are reluctant to grant bail not because they do not understand crime but there is a sense of fear of being targeted for granting bail in heinous cases.” As an urgent measure, the CJI decided to distribute pending bail cases among the Supreme Court judges and the courts are now in the process of disposing of them before the Christmas holidays start in December.
Bail, however, is not the only issue plaguing the prisons and judiciary. According to data provided by the NCRB’s 2021 report, of the total 1.44 crore cases registered under the Indian Penal Code (IPC), 13 lakh cases were disposed of in the year 2020. Of the pending cases, a large chunk is constituted by old cases that are awaiting trial.
While the judiciary has at least identified and shown willingness to tackle the issue, the government – both at the Centre and state level – has only considered setting up more prisons in response. Devendra Fadnavis, Maharashtra’s home minister, recently announced that a new prison will soon be set up in Mumbai. Within the Mumbai metropolitan region, there are already five prisons but all are overcrowded. In 2019, the Union government came up with a Rs 1,800 crore plan to set up 199 new jails across India. These decisions are taken with no clear decongestion plans for existing prisons.
President Murmu is concerned about plans to increase the number of jails. And if society is making progress, there is no place for prisons, she said.
She ended her speech by saying that she has left some things unsaid, which the judiciary and the government should think about and understand. This was yet another indication that the problems that plague Indian prisons cannot be resolved unless these two institutions decide to tackle them together and on priority.