Unclogging prisons and trial courts could be a perfect way of celebrating 75 years of India’s independence, said the Supreme Court on Friday while imploring the Union government to quickly come up with measures for facilitating the release of under-trials and those convicted of minor offences.
A bench of justices Sanjay Kishan Kaul and MM Sundresh added that inmates should ideally be let out on bail if judiciary cannot decide their cases within 10 years, lamenting that a person cannot get his life back if he is finally exonerated after that period.
“The government is celebrating 75 years of independence as ‘Azadi ka Amrit Mahotsav’ (elixir of freedom). This is the perfect time to utilise this celebration for coming up with measures to release under-trials and other convicts who have served a substantial part of their sentence. The idea is to unclog the jails and unclog the trial courts,” the bench told additional solicitor general (ASG) KM Nataraj, who appeared for the central government.
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According to the bench, the Centre should have a dialogue with states and Union territories to evolve a policy where certain categories of under-trials and convicts could be released after a fixed term on a bond of good conduct.
“You may come up with categories of prisoners as well as offences where the inmates should be released. We are not saying someone who has committed a crime should not suffer incarceration. But protracted trials and keeping someone behind bars for the longest possible time without a conviction cannot be the solution. At the same time, first-time convicts of minor offences could be released on a bond of good behaviour. Similarly, after having gone through one-third or more of a possible jail term, an under-trial should also be released on bail,” it told the ASG.
On his part, Nataraj said that Prime Minister Narendra Modi, during his inaugural session of the first all India district legal services authorities meet in New Delhi on Saturday last week, also talked about the need to release undertrial prisoners, adding the court’s suggestion will have to be examined under the existing legal framework.
At this, the bench urged the Centre to think “out of the box”. “This is a worrisome issue. You must think out of the box. Who is going to give them their life back if they are acquitted of all charges after 10 years. If we cannot decide a case within 10 years, they should ideally be granted bail,” it said.
The court also rued that punitive theory of punishment has taken precedence before the trial courts. “The reformative theory of punishment is completely overlooked. One purpose of punishment is to also see the accused reintegrate into society. After serving years behind bars as under-trials or in cases of first-time offenders in minor offences, they should be able to come out… come up with a policy after consultation with states and UTs,” it told Nataraj.
As the ASG said he would take instructions in the matter, the bench replied: “It can only happen this year or we will be back to square one… make some beginning before August 15. Do it as a one-time measure for now. At least, some tokenism can be done immediately. It will send a larger message.”
The court added: “Putting people behind bars or opposing bail upon realising that the evidence is not good enough to get a conviction can never be the solution. The investigation mechanism has to be improved but a court cannot fill the lacuna of a bad investigation by keeping accused inside.”
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The court’s exhortation to the Centre came as it took stock of long pendency of appeals and bail applications across high courts in the country while accused and convicts remain incarcerated awaiting disposal of cases.
In October last year, the bench had initiated proceedings on its own motion (suo motu) to monitor implementation of its directives on grant of bail to under-trials and during the pendency of the appeal. It had directed that bail applications must be listed and decided expeditiously in all cases where the accused have been in custody.
In its 2021 order, the bench urged all the high courts to categorise cases based on their pendency, and prioritise disposal of the ones pending for more than 30 years.
On Thursday, the bench sought information from 10 states and high courts, including Uttar Pradesh, Punjab, Haryana, Maharashtra and Madhya Pradesh, on cases where appeals against conviction have been pending for at least 10 years and the convicts remain behind bars. It also appointed advocate Gaurav Agrawal as amicus curiae in the matter to assist the bench.
