There are many blemishes on India's human-rights record. But, surely, the number of people serving jail time who have not been convicted of any crime is high on that list. It is a basic requirement of justice, one understood for centuries, that people are presumed to be innocent until they are proven guilty. In India, however, too often the punishment comes before conviction, and just being accused of a crime can cause an individual to serve substantial jail time as an under-trial prisoner.
The systemic consequences are also major. The number of people who have been accused and sent to jail - "undertrials" - dwarfs the number who have been convicted. There are around 125,000 convicts in jail; but they share space with around 250,000 undertrials, twice as many. This is something that needs to be remedied. And last week, the Supreme Court took steps to do so that are to be commended.
The Supreme Court was acting to enforce Section 436(A) of the Criminal Procedure Code. The section was amended in 2005, by the United Progressive Alliance government. The new section says, essentially, that if a prisoner has been detained for longer than half the maximum period of imprisonment associated with the crime he has been accused of, then the prisoner should be released on the presentation of a personal bond - no need, in other words, for bail money. Unfortunately, although this progressive law was on the books, implementation required the states' law-and-order machinery to move, or for local judges to act. This was not happening. Few were aware of it; the district-level committees needed to track its implementation were not being asked by many states to meet and ensure action; and trial courts continued to press for bail bonds. Like its predecessor, the new National Democratic Alliance government decided to try writing to the state chief secretaries to get the process moving, and the review committees meeting. That was the position when, on Friday, Attorney General Mukul Rohatgi told the Supreme Court that the chief secretaries were being asked to implement the law, but the various high courts also needed to take action - and the task was "enormous".
To the Supreme Court's credit, it dismissed the Centre's idea to involve the high courts as unworkable, and took on its role as the apex regulator of the court system. The court said that, over the two months after October 1, district judges must visit the prisons in their areas and pass the required orders to free long-serving undertrials in a court session conducted on the jail premises. This is a sensible and welcome move.
However, the impact of the order needs to be evaluated in the context of the composition of undertrials in jail. According to crime records, the number of undertrials who have been in jail for longer than 10 years is only about 10,000. Of that, a reasonable number may be accused of heinous crimes such as are not covered by Section 436(A). But this also means a large number of undertrials - about 240,000 - may be entitled to get relief from the Supreme Court order provided their confinement in jail has already exceeded half of the maximum punishment period associated with the crime they have been accused of. In any case, if the process is carried out with despatch, then it may mark a change in the mindset of the lower judiciary, and bail may stop being an option and start becoming a right.