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Pre-punishment posting

The latest number of people in prisons without a conviction is actually 2.1 lakh — that’s a staggering 70% of the 3 lakh-odd undertrials in the country, writes Chanakya.

india Updated: Jul 30, 2011 22:17 IST
Hindustan Times

I know it’s hard, but for a moment, forget about Raja, Kanimozhi and Kalmadi. Instead, consider the case of Shamsuddin Fakruddin, a vegetable seller in Delhi who was charged last year for stealing a wallet with Rs 200 and an ATM card in it. If found guilty, Fakruddin would have had to spend three months in prison. Instead, he spent 12 months in jail and was finally freed last week after he decided to plead guilty.

Fakruddin still insists he had not stolen the wallet. He may have been guilty of the crime or he may have been innocent. We will never really get to know the truth considering that it made more sense for him to plead guilty after a year in jail without trial and then be freed than spend god knows how many months or years waiting for a proper trial to be conducted. He was denied bail by the district court in February this year — six months after he was arrested and, therefore, after already spending double the time in jail if he was found guilty — because of the “seriousness of the crime” (sic). In April, he was granted bail against R10,000 which he could not provide. So he stayed put in Tihar for another three months. ‘Luckily’ for him, Fakruddin isn’t a politician or a VIP. So I guess now he can get back to business as usual selling veggies near Okhla.

There are thousands of Fakruddins out there — or, ‘in there’ actually — languishing in prisons for years (and some for decades) before they are pronounced guilty or innocent of the crime they are accused of. The latest number of people in prisons without a conviction is actually 2.1 lakh — that’s a staggering 70% of the 3 lakh-odd undertrials in the country. They are in jail because their case has been dragging on for years. In some cases, the incarcerated undertrial is acquitted after years. Effectively, he has been ‘pre-punished’ by the same law that ultimately finds him innocent.

So why are undertrials who are not convicted sent to jail in the first place? If the crime is a heinous one, or the accused is suspected by the court of being able to manipulate the investigation proceedings and tamper with witnesses, bail is denied to the accused.

But it stands to logic that an accused who has not been imprisoned before a chargesheet is filed — which marks the completion of the investigative process — shouldn’t be incarcerated before conviction. After all, a person not suspected of being able to ‘fix’ the investigations during the investigations should hardly pose a threat after the probe is closed and the trial is yet to begin.

The very concept of imprisonment before conviction has been questioned time and again. Earlier this month, senior BJP leader Jaswant Singh was right when he rumbled to the media “that if somebody has been charged and that charge is not of heinous nature like robbery, murder or any such thing ... when trial is on, then that somebody should not be kept in prison because you can’t permanently deny bail”. He was referring to the imprisonment of Raja and Kanimozhi. But it also applies to the aforementioned 2.1 lakh in jails across the country.

Speaking to someone who knows the shadowy side of law enforcement, I was told that this was how much of the reasoning behind jailing an accused works: “The cops know that the accused, especially if he has political links, will walk free at some point. So their logic is ‘Might as well keep the guy locked up in prison before any trial starts and make him pay for his crime before the law sets him free’.” What this sets in store for an ordinary ‘underclass’ accused of a crime isn’t hard to imagine.

But coming to high profile cases, what determines the locking up of the accused before sentencing? My money is on that creature called public sentiment. Can the law be swayed by the lynch mob outside the court house and jail?

The laggardly pace of investigations — never mind their efficiency — is responsible for many ‘watertight’ cases falling through. In Nitish Kumar’s Bihar, where cases have been fast-tracked, justice has been done and has been seen to be done. So the thing works when it is allowed to work. This means not only quickening the pace of trials in courts, but also ensuring that ‘pre-punishments’ (imprisonment before sentencing) stop being the substitute of punishments (sentencing after a verdict).

But above all, there needs to be a rethink on how the judiciary is required to be quarantined from public pressure. I’m sticking my neck out here and going against the grain, but in my book Raja, Kanimozhi, Kalmadi should be locked away in Tihar after the courts find them guilty. And that goes for everyone else who you don’t rail against and isn’t in the headlines, and who are in prison without being convicted and, for all effective purpose, are deemed guilty even before the law finds them so.

First Published: Jul 30, 2011 22:15 IST