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NEW DELHI: Judges must ensure that the law does not discriminate against anyone based on the quality of legal representation an accused can afford, Supreme Court judge and executive chairperson of National Legal Services Authority of India (NALSA) justice Sanjay Kishan Kaul said on Monday, observing that it was the poor and uneducated who end up behind bars for years while the rich get bail at an earlier date.
Justice Kaul was inaugurating NALSA’s two-month-long campaign on Monday to expedite the identification of undertrial prisoners who are eligible to be released.
Justice Kaul, the seniormost judge after the Chief Justice of India Dhananjaya Y Chandrachud, said: “Our responsibility as judges is to ensure that the law is followed in letter and spirit and it does not discriminate between anyone on basis of the quality of legal representation they can afford, among other man-made qualifiers.”
Justice Kaul said judges couldn’t turn a blind eye to the plight of the poor.
“Continued detention of poor, uneducated prisoners can have a severe impact on him or her and the family and affects them adversely in future. It is this section of society which is more prone to detention and the people who are able to afford appropriate legal assistance invariably get bail at an earlier date,” the judge said.
Citing data from Prison Statistics India 2021, justice Kaul said the country’s 1,319 jails have an average jail occupancy rate of 130% and there were about 10 prisons, which have four times their holding capacity.
The NALSA special campaign launched on Monday seeks to reduce the burden on the country’s jails by identifying undertrial prisoners whose release can be processed by the undertrial review committee headed by a district judge in each district.
Justice Kaul noted a “disturbing trend” where the prosecution may not have the ability to secure a conviction and the years spent in jail by the undertrial are perceived to be sufficient punishment. Such prolonged detention, the judge said, does not augur well with the 2030 Agenda for Sustainable Development adopted by the United Nations in 2015 where the proportion of undertrial prisoners to the total prison population is an indicator of the sustainable development goal of access to justice.
“Detention today is viewed in the context of development. Extensive use of detention before conviction diverts criminal justice resources and exerts financial and employment burden on the accused and their families,” the NALSA chairman said.
“The inclusion of access to justice in the 2030 Agenda for Sustainable Development is recognition of the intrinsic link between access to justice and ability of people to receive equal treatment under law so that their rights are protected.”
The district-level undertrial review committees were constituted pursuant to directions by the Supreme Court in a suo moto case relating to prison conditions in 2015.
Over the last five years, the review committees have recommended the release of over 2 lakh prisoners resulting in the release of 91,703 prisoners across the country.
A similar campaign initiated by NALSA last year in July-August resulted in the release of 37,220 prisoners.
In March, the top court told states and investigating agencies to instruct their prosecutors not to insist on the arrest of accused who cooperate with the investigation of offences punishable with jail for seven years or less. “In some states, there is disproportionately large number of undertrial prisoners who are unable to comply with bail conditions… some special steps are necessary to tackle the problem,” a bench headed by justice Kaul said in the order.
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