1,36,217 prisoners, in for petty crime, have been set free in a drive that ends in a few days. Will freedom reform them, or will they come right back to jail?

BY VAIBHAV VATS

Exit lines As they wait for the system to take note, many petty criminals waste the prime of their lives in jail Photo:AFP

IN THE files that lie stacked up in dingy courtrooms, Kanhaiya Lal’s was a name among thousands, buried and forgotten. He spent five years in jail, accused of stealing a motorcycle. Sections 379 and 411 of the CrPC, under which he was booked, prescribe terms of a maximum of three years. The trial never concluded.

Miraculously, on 27 January this year, Lal found himself on a list of 46 undertrials to be released in a special sitting at Delhi’s Patiala House court. They were the first to get reprieve under Law Minister Veerappa Moily’s initiative to free undertrials and decongest jails.

The 45 others who were released with him that day were caught in a similar quagmire of crushing poverty and petty crime — minor cases of fraud, theft and cheating. In a system where bail is available to those who can show proof of property and furnish financial surety, they had committed the crime of being poor.

Being an undertrial in India is an endless tale of oppression, of being forever stuck in brutish, overcrowded jails as a laidback judiciary languorously delivers its judgments. “The vast majority of undertrials have committed petty crime. But there is no Jessica Lall-like scenario here for middle-class outrage,” says Dilip D’Souza, Mumbai-based journalist and author of Branded by Law: Looking at India’s Denotified Tribes.

It is only when you look at the numbers that the crisis becomes apparent. At the turn of the year, the 1,276 jails in the country were housing 3.75 lakh prisoners, one lakh above capacity. Two-thirds of that number, around 2.5 lakh, is made up of undertrials. It is an alarming statistic that points to the failure of the system at all levels. How did we reach this state of affairs?

“This is the inevitable outcome of a system, which is perpetuated due to lack of accountability,” says Maja Daruwala, director of the Commonwealth Human Rights Initiative (CHRI), a Delhi-based NGO that works on prison reform. “The judiciary places the comfort of the investigating agencies and the police above the rights of the undertrial,” she says. Given that more than a third of undertrials are illiterate, and the rest have only rudimentary education, the courtroom appears doubly alien, separated by barriers of class and language.

Step into any courtroom in India and the nature of proceedings will seem incomprehensible even to the educated. Adjournments are easily given. D’Souza remembers how a driver involved in an accident case appeared in court about 50-60 times over five years before arguments began. “The lawyer and the judge haggle over the table, heads nod in agreement and the next date is given,” says D’Souza.

One reason why petty offenders like Lal end up adding to overcrowding in jails is because our bail system is a colonial relic, geared towards detention rather than limited release, to keep fears of a native revolt in check. Asim Sarod, an activist working with the Sahyog Trust in Maharashtra, says there are hundreds of undertrials eligible for bail in that state, but simply cannot come up with the surety required by the law to set them free. “The court’s attitude towards the poor is of mistrust and non-reliance,” says Sarod.

DESPITE PRECEDENTS that allow for the release of poor undertrials on personal bonds, the courts have been reluctant to do so. As far back as 1978, Motiram’s appeal to the Supreme Court encapsulated the issues still faced by poor undertrials. A mason by profession, Motiram was ordered to pay Rs 10,000 (an impossible sum for him in the 1970s) as bail surety. Noting that “the poor are being priced out of their liberty in the justice market”, the Supreme Court had observed that bail provisions in the CrPC “must be liberally interpreted in the interest of social justice”. More than three decades later, the observation still remains shamefully relevant.

It is this anomaly that Law Minister Moily has sought to address in a welcome initiative to decongest jails by releasing undertrials incarcerated for years for nongrave offences. By advocating proactive implementation of a recent amendment in Section 436 of the CrPC, which allows for release of undertrials who have served half the maximum possible period of imprisonment, Moily has sought to end incarceration and decongest in one stroke, by drawing a roadmap to release 70 percent of all undertrials by the end of July.

In an interview with TEHELKA, Moily said the initiative was a “huge success”. According to the law ministry’s latest figures, 1,36,217 prisoners have been freed so far. But serious questions remain — activists and lawyers seeking details through RTI applications have received tepid replies, with India’s notoriously secretive jail authorities unwilling to share information. Lawyers point out that plea-bargaining is being advocated as a one-stop solution. “The approach is basically that if an undertrial pleads guilty, we’ll let him go,” says a lawyer working on the project, who did not wish to be named.

Most undertrials were already on the police radar, picked up repeatedly if anything untoward happens in their neighbourhood. “They are not counselled about the repercussions of being convicted,” the lawyer adds.

Jail adalats, which are used sparingly, are working overtime to aid the initiative. Sources say jail adalats in Mumbai’s Arthur Road prison have been convened every day, as opposed to one or two times a month in the past. “The jail adalat is a closed space,” says Priti Bhardwaj, a programme officer with CHRI. “It is not like a normal court, where there is openness to proceedings and, therefore, scrutiny.”

Even those who back Moily’s initiative believe it is no more than temporary balm to a festering sore. The question most asked is — even if a large number of undertrials are released by July, wouldn’t the jails fill up again? “Once these prisoners are out, the situation will revert to status quo after the initiative ends,” says Daruwala.

A BIG obstacle is that the three agencies concerned — police, prison and judiciary — do not work in tandem. “This lack of coordination means that the three continue to flounder in isolation,” says R K Saxena, former Inspector- General (Jails) in Rajasthan. “For example, prisons must inform a court if an inmate has served his sentence,” Saxena adds. “But mostly prisons are too lax, and no one is held accountable should anything happen inside a prison.”

Of course, it does not help that India’s prisons continue to be governed by the archaic Prisons Act, 1894, a law that does not contain provisions on prisoners’ rights and their rehabilitation. Another obstacle to reform is that prisons are a state subject. Each state and Union territory has its own prison department, its own laws and rules and regulations. “We need a centralised prison model on prisoners’ rights that is implemented nationwide,” says Asim Sarod. Others argue for prison officials to be made part of a cadre-specialised force, not as devalued pawns where senior police officials are at the helm of a prison, as it prevails currently.

Though the initiative is universally agreed upon as a long overdue step, far more needs to be done. “That we need this special initiative is an indictment of the system, a sign of its near-collapse,” says Sarod. A beginning would be the constitution of an Administrative Reforms Commission to alter approaches to law and order issues.

Daruwala believes a legal system that is accessible to the poor needs to be created on a war footing. “The focus has to be on the efficient and ethical functioning of the lower judiciary,” she says. In this scenario, Moily’s announcement in Kottayam this April that Rs 5,000 crore will be pumped into the lower courts is encouraging.

The National Mission for Delivery of Justice and Legal Reform, conceived in October 2009 by the law ministry, is an ambitious document that seeks to radically alter the judicial landscape. Its goals are colossal and diverse — reducing pendency of cases from 15 to three years by 2012, the formulation of a Special Purpose Vehicle to provide infrastructural and managerial support, and technological upgradation such as e-courts and video-conferencing to ensure speedy trials. Yet, it will only have meaning if the goals are substantially achieved.

In his novel The House of the Dead, Fyodor Dostoevsky drew upon his prison experiences in Siberia, portraying the tragedy of its absurd misery and savage brutality. Nearly 150 years later, Dostoyevsky’s novel can be read as a parable for the modern Indian prison. Moily’s initiative is a welcome step, but unless the entire criminal justice system is overhauled, the jails will fill up just as quickly as they are being emptied.

CASE STUDY 1

‘Jail finished him off. Now, he even forgets to ask for food’ JAGJIVAN RAM YADAV, 74, is an artefact in the museum of the living dead. In 1968, he was arrested for allegedly murdering his neighbour’s wife. His trial never began because police records were lost. The trial court could neither grant him bail nor examine the charges. In January 2005, his case resurfaced after prison authorities asked the court to rule on his status as an undertrial. The district court asked the Khandaga police station to provide records and received the same reply as three decades earlier. Following a vigorous campaign by civil society and the media, Yadav was released in March 2006 after a Supreme Court directive, with the then Chief Justice YK Sabharwal ordering his release. It is hard to say what the release meant to Yadav, as he is unable to articulate his feelings. In his house in Faizabad’s Kharbariya village, Yadav sits in a courtyard surrounded by buffaloes, lost in a perennial reverie, just as in his 38 years in prison. He seeks no social interaction. “He even forgets to ask for food,” says Radha Yadav, his daughter-in-law. Ram Raj Yadav, his brotherin- law, who lives in the same village,has vivid memories of Jagjivan as a vibrant young man. He has a succinct, almost brutal, explanation for Jagjivan’s state today. “The jail finished him off,” he says. Once in a while, Yadav walks around the village. Insisting on wandering alone, he heads to the dry grasslands on the periphery, where he meanders for hours. Gestures of affection fail to elicit a response. “Ever since he returned, he never talks to anyone,” says Jog Patta, a relative. Keshav Ram, his 43-year-old son, comes home every two months to meet the man who is a virtual stranger. An employee with the Punjab Electricity Board, Keshav was barely a year old when his father was arrested. While growing up, his father’s absence was an eternal mystery. “My mother refused to tell me about it,” he remembers. “Everyone wore a shroud of silence.” Keshav first set eyes on his father at the age of 39, when Yadav was freed. “I have three children now, so it was strange to meet my father aer so long.” In this belated reunion, there is an ironic role-reversal. Keshav is the paternal figure, while the elder man listens obediently.

CASE STUDY 2

‘I was neither dead nor alive for 19 years in jail. Now, I’m in a different jail’ SHER BAHADUR, 48, was the son of a small-time contractor who owned a little land in Garhi Chanauti, a scenic village on Lucknow’s outskirts. In 1989, his future looked promising. He fought the Assembly elections as an independent, bagging third place. His increasing electoral stature began to pose a threat to those with similar ambitions. One day, he was picked up from his home for allegedly firing on a police party. It was a false case, and Bahadur expected to be out soon. He had not understood the ruthless, absurd nature of Uttar Pradesh politics. Soon there were as many as 67 cases piled up against his name. According to his lawyer Jaikishan Arora, who fought a 19-year battle to acquit him in all cases, no section of the Indian Penal Code was spared. “The bastards even slapped the Narcotics section on me,” Bahadur fumes, more than a year since his release. “My only addiction is gutka.” The deep creases on Bahadur’s face and his unwieldy stubble are mirrors to a suffering difficult to imagine. “I was neither dead nor alive,” he says. With deep, futile anger, Bahadur speaks of the nightmare — the mental and physical exploitation, endemic corruption and dehumanising conditions. “10 minutes aer you arrive, you are handed a broom,” he says. “Unless you can pay, you are constantly harassed. Sometimes, even paying is not enough.” By the late 1990s, the 67 trials were moving at a snail’s pace. He wrote to the President and the PM, seeking mercy killing. He says sarcastically, “Under this country’s law, one can’t even get death according to one’s desire.” In a testament to human endurance, Bahadur kept fighting till all the cases fell “like a pack of cards”. A man not condemned to even a day of punishment by the court ended up spending critical, life-defining decades behind bars. How did he feel when he finally walked out a free man? “It felt like a different kind of jail,” he says, meaning he was ill-equipped to face the challenges of resurrecting a family ruined by his plight. It still rankles that no one paid a price for his tragedy. “Not a single inquiry has been constituted,” he says. “Not a single police official was punished for the injustice meted out to me.”

PHOTOS: VIJAY PANDEY