A recent Calcutta High Court order shows how personal liberties must be allowed to convicts as well. Calculating backwards, one can assume that the huge number of undertrials in Indian jails deserve their liberties too
By Sujit Bhar
Democracies develop on a plinth of civil liberties that extend from the home to society and to every official system that he or she is subjected to in his or her lifetime. And ensuring these civil liberties, alongside other amenities for sustenance, are among the primary responsibilities of the State.
Within the Indian Constitution, elaborate methods have been mentioned through which citizens can stress upon such liberties being made available to them. And these have also been termed as fundamental rights.
Article 21 of the Constitution states: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” What have been derived from that are two fundamental rights:
The Right to life and the Right to personal liberty.
The right to property was also a fundamental right, till, in 1978, through the 44th amendment to the Constitution it was removed from that list and converted into a simple legal right under Article 300 A.
The rights to life and personal liberty are possibly the most important rights that a citizen of any country can have. And it becomes the responsibility of India’s extensive judicial system to guarantee that.
However, in this age and time we aren’t very sure if the right to live with dignity is even a right. That is the feeling of free citizens, unencumbered by any legal proceeding. It is exhilarating, therefore, when the Calcutta High Court states that the right to live with dignity cannot be deprived merely because a person is convicted.
This came from Justice Sabyasachi Bhattacharyya, while passing order in a case where the petitioner challenged the decision of the State Sentence Review Board, West Bengal (SSRB) in rejecting the application of the petitioner, the wife of a convict who was handed a life sentence.
Within the confines of the case (Mahuya Chakraborty vs The State of West Bengal and others), the arguments proceeded as follows:
The petitioner’s counsel Kaushik Gupta cited the judgment in Rajo alias Rajwa alias Rajendra Mandal vs The State of Bihar where the Supreme Court has observed that the ultimate goal of imprisonment, even in the most serious crime, is reformative after the offender undergoes a sufficiently long spell of punishment through imprisonment.
In this light, Justice Bhattacharyya made two observations. The first was that the convict (the petitioner’s husband) has already been in custody for more than two decades. The second was that the aim of punishment in modern criminal jurisprudence is reformative and not retributive.
The Court pointed out that the SSRB had not bothered to ask for any report from the probation cum after care officer and/or the superintendent of the concerned correctional home where the petitioner’s husband has been incarcerated, in its effort to show that the behaviour of the convict has not been up to the mark, justifying the rejection of the plea.
Added to that was the fact that while the socio-economic condition of the family is not good, the victim’s son and relatives apparently oppose the premature release of the convict. Yet, stated the Court, even this opposition (by the family of the victim) needs to be backed up by solid reasons.
The Court said that there cannot be any double punishment on the convict by refusing him an opportunity to reintegrate in mainstream society.
The convict was released.
This is a small item of good news for India’s jail system, which needs a breather. Every report of the National Crime Records Bureau (NCRB) shows the deteriorating condition of Indian jails and how inhuman the conditions are inside. According to Prison Statistics India 2022, over 75% prisoners (nearing the 77% mark) are held as undertrials, while the average actual occupancy is over 131%.
During the Covid-19 pandemic it was found that in certain jails the conditions had become so pathetic that there was no space for all inmates to go to sleep at the same time. They had to sleep in turns. The Court was forced to order special bails during the pandemic so that the overcrowding in jails does not help the pandemic spread like wildfire within the system.
This pathetic condition has, obviously, returned to its earlier pathetic state, and not much has changed within the walls of purgatory. The overcrowding keeps on growing, with new laws that make getting bail near to impossible being enacted.
Within this let us return to Article 21: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
This means that there lies an elbow room for the justice system to put convicted people in such overcrowded positions. But what about the undertrials, for whom justice, or the process of law, has not been completed (for some cases, they may not even have started)?
What happens to 75-77% of the inmates in Indian jails, many of whom may not even know the real nature of their crimes? According to official data from NCRB, of the 5,54,034 prisoners, 4,27,165, or 77% were undertrials in 2021. This was a 14.9% increase from 3,71,848 undertrials in prison in 2020.
What happens to their “lives and personal liberties?”
If this order of the Calcutta High Court can be taken as a precedent, there could be a solution found for the inhumanity forced upon hundreds of thousands of people behind bars in India.
The convict in question, who earned his reprieve, is probably a lucky one. There would be many more inside the high walls who might not be able to pay for any bail bond, or may not even have heard of Article 21. And not many have the wherewithal to access the many facilities of the National Legal Services Authority (NALSA).
The government constituted NALSA under the Legal Services Authorities Act, 1987, to provide free legal services to the weaker sections of the society and to organise Lok Adalats for amicable settlement of disputes. But we all know how it barely affects those already crowding jails, staring at blank walls, losing hope every passing day. If it did, neither would the jails be so overcrowded with undertrials, nor would the pendency in Indian courts be like the Himalayas.
Article 21 is applicable within the jails, too, as the Calcutta High Court order shows. If it can be made applicable to a convicted criminal, it should also apply to those who have not been convicted, probably more so.
It is urgent for the government to undertake a programme that may help these undertrials access more legal help. NALSA has to become more active not just in cities, but also in the districts. This is because (as per the same data) district jails had the highest share of undertrials, accounting for 51.4% of the total. Central jails only come in second, at 36.2%, followed by sub-jails (10.4%).
It is possible that educational programmes by the Supreme Court be extended across the country, so there is fair distribution of the number of free legal services available.
According to senior advocate Colin Gonsalves, not only is the number of undertrials increasing, the capacity of jails to hold prisoners has also been exceeded, and new jails are barely coming up that fast. Gonsalves says that the number of undertrials in jail can be reduced if the authorities follow the order of the country’s top court.
And now that there is a precedent in an order of a court, this could get easier.
There has to be a will to do good, though that might be missing.