'Out Of Box Thinking Needed To Declog Prisons' : Supreme Court Tells Centre, States

The Supreme Court, on Tuesday, reiterated its out of the box suggestions to unclog jails in commemoration of the 75th year of independence.

A Bench comprising Justice SK Kaul, Justice Ahsanuddin Amanullah and Justice Aravind Kumar was hearing a suo moto plea instituted for the purpose of issuing a comprehensive policy strategy for the grant of bail.

Noting that previously the Apex Court had requested the Union and States Governments to consider whether cases which have specified maximum sentence (7 or 10 years) and the accused have either served half of their sentence; or pending trial have already undergone half or one-third of their term of imprisonment can be released, Justice Kaul suggested that endeavour is to be made to take these cases out of the judicial system, so that the States can concentrate on more heinous cases.

Considering instances of cluttering of jails; socially weaker sections of people languishing in jail, Justice Kaul told the Additional Solicitor General, Mr. KM Nataraj that ‘some thought process we wanted from the Government’.

The Bench suggested -

“...keeping in mind the celebration of 75 years of independence whether these matters can be identified and simply on grounds of good behaviour they can be released, saving trial. This is an out of the box approach, but looking at the pendency it would be worth experimenting.”

It added -

“This may also be applied to single incident cases where the conduct of the person in jail is not adverse…We expect ASG to arrange for interaction with States and Centre and to submit a report on progress and feasibility, at least a week before the next date of hearing.”

The Bench also took note of the other issues that had been previously flagged by the three Amici.

Undertrial prisoners continued to be in custody despite being granted bail as they could not fulfil the bail conditions

In this respect, the Amicus Curiae, Advocate Gaurav Agarwal took the Court through his notes pertaining to National Legal Services Authority’s (NALSA) follow-up on the Master data of such undertrials. He apprised the Bench that as of 31st December, 2022, 5362 such undertrials had been identified. Out of these 5362, 2129 undertrial prisoners were released till 13th March, 2023; 600 undertrial prisoners can not be released as they are accused in multiple cases; in 582 cases modification applications have been filed by the undertrial prisoners. Apart from these 2051 cases are pending, which needs to be followed up.

E-prison Software

The Bench was informed that the said software would have a specific field where the date of bail order would be entered by the jail authority. If after 7 days of the bail order being passed, the undertrial prisoner is not released, the District Legal Services Authority would be informed, so that there is no further delay in the process. The Amicus stated that this process has already been initiated. However, he flagged the issue that jail authorities need to be trained in order to be able to put in the required data. In this regard, he sought active cooperation on the part of the National Informatics Centre (NIC) to train the jail authorities. The Amicus also informed that Bench that he has discussed the issue with the Additional Solicitor General, Mr. Nataraj, who has assured cooperation.

Justice Kumar told the Amicus that in Gujarat a system known as ‘Email My Case Status’ (EMCS) is prevalent. The Judge explained how the system functions -

“EMCS developed by each jail. The number of cases pending is entered in that software. Whenever a matter is listed the Jail Sup gets an email and if his number is registered, he gets a message about the hearing. Upto 100 cases you can maintain in that software.”

In light of the same, the Bench requested the Amicus to look into it and ascertain if the same software can be successfully utilised by the other States.

Suggestions by Project 39A

It was pointed out that applications had been filed by the National Law University, Delhi through the Fair Trial Fellowship Programme under Project 39A, providing suggestions from their practical experience of working at prisons in Nagpur and Pune. The Bench directed that their suggestions may be examined by NALSA. If found adequate they can be implemented forthwith, without awaiting further orders of the Apex Court.

Plea Bargaining, Compounding and Release on Probation

Taking the Bench through his notes Mr. Gaurav Agarwal provided data with respect to the progress made by different High Courts in this regard. He particularly provided the data for the State of Gujarat -

“Figures for last two months, in Gujarat, 378 courts have been specified for the purposes of carrying out exercises of plea bargaining, compounding and released on probation…15432 cases have been identified, as of 20th Feb 2023, 2129 cases disposed of. Plea bargaining in 1428 cases, compounding in 604 cases, released on probation 97…”

Noting some progress, the Bench recorded in the order,

“Pioneering endeavour made by different High Courts (plea bargaining, compounding, probation) which definitely shows progress has been made though the level of progress may vary....What has been pointed out is that District Court have identified 52000 cases, 9142 cases disposed of. We hope the remaining cases will also be considered by the next date and a report will be given.

Uttar Pradesh Legal Services Authority stated 656 prisoners undergoing fixed term sentences, first term offenders and have undergone half of sentences which can be considered for premature release.”

With respect to plea bargaining, compounding of offence and probation, Justice Amanullah emphasised on the importance of informing the accused of the consequences of their admission of guilt. Sharing his experience as a High Court he stated that once an appeal came before him wherein the accused had alleged that his lawyer did not inform him about the consequence of admission of guilt. In this regard, he reckoned, “We are an institution for dispensation of justice. It is seen that the consequence of admission of guilt (in plea bargaining, compounding and probation) is not shown to them. They (accused) are very happy that they will get out, but as an institution it has to be ensured that it is an informed decision…Unfortunately in India it is a taboo, in the west it is not so.”

Prisoners who have undergone half the sentence

The Amicus, Mr. Agarwal submitted that considering the number of appeals pending before the Allahabad High Court, the Apex Court had indicated that the prisoners who have undergone half the sentence pending appeal be released. He apprised the Bench that some progress has been made in this regard. 844 such cases have been identified and bail applications have been made. He added -

“Half of them have been released, half are pending. That exercise the High Court has started doing.”

Premature release of life convicts

On the issue of premature release, the Amicus Curiae, Ms. Liz Mathew flagged two issues - one pertaining to the collection of documents, which has turned into a time-consuming exercise and is causing delay; the other pertains to the time taken by the Governments to process the documents and take decision, which is also taking a considerable amount of time. Accordingly, the Bench directed the State Governments to expedite the process at both the stages.

At the request of the Amicus, the Bench also directed that in case of rejection of premature release, the information is to be shared with the accused as well as the District Legal Services Authority along with the reason for the rejection. The pilot project for premature release of life convicts has now been extended to four more states namely, Delhi, Goa, Punjab And Haryana and Himachal Pradesh in addition to the four states, Assam, Jharkhand, Telangana and Gujarat, where the pilot project is already being undertaken.

[Case Title: In Re Policy Strategy for Grant of Bail SMW(Crl) No. 4/2021 and Sonadhar v. State of Chhattisgarh SLP(Crl) No. 529/2021]

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