32 Years Later Not Much Has Changed

Today’s front page of the Times of India carries a story about a 19 year-old who has been in jail in New Delhi for the past year on the charge that he stole 200 Rs because he could not post bail (which was 10,000 Rs). Ordinarily if convicted he would serve three months, so on the advice of his lawyer he finally reluctantly pleaded guilty yesterday and was released. (full disclosure: I know both the reporter of this story and the legal organization – HRLN – that represented him).

To anyone who has worked around the criminal justice system in India there is nothing new to this story. In Delhi alone there are hundreds if not thousands like him who have already served more time than they would likely ever be convicted for. They just can’t afford bail. Essentially, because they are poor they are trapped. While in jail they lose their jobs, they lose touch with their families, and they frequently become depressed and despondent, making them susceptible to drug and alcohol addiction. They lose, society loses, tax payers lose.

32 years ago one of the first seminal Public Interest Litigation cases was decided: Hussainara Khatoon vs. State of Bihar in which Justice Bhagwati eloquently ordered the release of thousands of under-trials in Bihar, trapped by a bail system that like today’s essentially criminalizes poverty. Basically, the order said that when prisoners could show ties to the community a court should consider releasing them without them having to post bail.

I am not a criminal law expert, but from my perspective it strikes me despite all the reverence still given to the Hussainara Khatoon decision little has changed. Groups like Commonwealth Human Rights Initiative still tirelessly campaign on this issue and I know the High Courts and Supreme Court have lower courts periodically review their undertrial situations, but the problem is still entrenched.

As TOI points out in their brief editorial on this at the bottom of the article it seems that at the very least persons held should be released once they have served the maximum possible sentence they could have . Then if they don’t return for the actual court date they can be held liable, and potentially convicted in their absence, but the penalty would still be time served.

Still, this doesn’t address the fundamental problem, which is the poor being held far too long just because they can’t afford bail. One option to think about might be to let prisoners out without bail if they have already served more time than an ordinary sentence for their alleged crime. The longer lasting solution would likely include both exploring other alternative forms of bail for the poor and providing them with better legal aid so that their cases can move through the system more quickly.
(Note: this post was revised because I had earlier said that the maximum he could have served was three months. In fact that it is instead a typical sentence for the charge – which still seems quite long even if one actually did steal 200 Rs).

Written by
Nick Robinson
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  • Much has been said, written and discussed about the plight of the poor in the criminal justice system. As it happens, that is not the case in India but in every country. The poor always get the raw deal because they can't afford any legal minds, let alone the best legal minds. One's right to be represented by a lawyer of one's choice (Article 22(1)) is a tricky provision. It say you have the right to be represented, not that one shall be represented by a lawyer (one's own choice or otherwise).

    The way I see it the problem is not the fact that poor people are not able to afford bail or lawyers who can get them bail or both. The problem is that granting Bail (of all assorted types) [and in Civil Litigations, granting stay – in trial and appellate courts both] is something that has no defined legal principle.

    There are no set criteria upon which bail has to be granted or refused. It is all discretionary. We need to take this discretionary power away from judges in trial courts. Let's face it. When it comes to Trial Courts in India the only thing that we can bank upon the judges to do is misuse their discretion. Where they have no discretion, they follow the law.

    Till the day Bail remains a consequence of a judge's whim, the poor will continue to rot. What the Supreme Court says is irrelevant for if the people of India had the sense or the will to follow what the Supreme Court says, we would not be in such a mess.

  • This is not the problem of a particular person or a particular country, Its all about us and till the time we will not start doing things at our level nothing is going to be changed.

  • It is true that it might be a news report for many but those few who work with the criminal justice system in India it is not.

    Working as a trial lawyer in district courts in Delhi, I myself witness so many trials continuing for years and years. And the dates are given on the most flimsy grounds like non-availability of the court steno to no current in the court. Sometimes, years pass without examination of even a single witness.

    The apathy of the whole system is such that you sometimes wonder who exactly is to be blamed-the police, the judge, the lawyer, the law itself or some external force making this all happen.

  • However while considering the case of the accused, one must not turn blind eye to the fact that if such persons are released on PR bond without surety, there is chance of 99% that he will not attend the court and it may become dormant case and thereby increase pendency in courts