In 2010 and 2011, the UPA released lakhs of undertrials as part of the National Mission for Delivery of Justice and Legal Reforms. But for all the hoopla, it failed to make more than a temporary dent in the country’s undertrial population. Since 2010, around 2.5 lakh prisoners — or two out three — have continued to be undertrials, punished before proven guilty.
Recently, reiterating the Supreme Court’s September 5 order, Union home minister Rajnath Singh wrote to chief ministers to ensure that undertrial prisoners eligible for release under Section 436A of the Code of Criminal Procedure — that is, those who have been in prison for over half the term of imprisonment for the offence they are accused of — are released.
Section 436A was enacted in 2005 to reduce overcrowding and ensure that poor undertrials do not languish in jails for long periods. Nine years down the line, there are still certain systemic failings that impair the effective implementation of Section 436A.
The primary obstacle is the poor prison record management. Often the details recorded by prison authorities are not sufficient to assess the eligibility of an undertrial for his/her release under Section 436A. For example, if an undertrial prisoner returns to jail after the cancellation of bail, or is transferred to another jail, his/her records start afresh with a new undertrial prisoner number. The time spent in jail previously for the same offence is not considered when determining his/her eligibility for release.
Lack of awareness among undertrials about their legal rights also contributes to prolonged pre-trial detention. According to the National Crime Records Bureau, 30% of undertrials in 2012 were illiterate, and another 45% were educated only up to Class 10. These undertrials, who may not know their legal rights, also don’t get enough free legal aid. Finally, district-level undertrial review committees, which every state was urged by a 2013 central government directive to constitute in order to review and monitor cases of undertrials eligible for release, exist largely only in theory.
Unless these systemic changes are brought about, any directive for the implementation of Section 436A is likely to have limited long-term impact.
Nusrat Khan is researcher, Amnesty International India.
The views expressed by the author are personal.