Author Name:   bhavya

this article describes the situation of civil jails in India which are over crowded due to pending cases...

Overcrowding Of Civil Jails

According to the Code of Civil Procedure, Section 51 empowers the court to order execution of a decree by arrest and detention in prison of the judgement debtor in appropriate cases for the period specified in section 58, CPC. No order of detention of the judgement debtor in civil prison is to be made where the total amount of the decree does not exceed five hundred rupees. Proviso to section 51 directs that execution by detention in prison shall not be ordered unless; the judgement-debtor is given an opportunity of showing cause why he should not be committed to prison. In an execution of a decree, a warrant for arrest and detention in civil prison can be issued to the appellants under section 51 and order 21, rule 37 of the Code of Civil Procedure. The decree-holders is also allowed to proceed against the properties of the judgment-debtors and in consequence of this all their immovable properties has been attached for the purpose of sale in discharge of the decree- debts. A receiver was appointed by the execution court to manage the properties under attachment.

hj It is too obvious to need elaboration than to cast a person because of his poverty and consequent inability to meet his contractual liability. To be poor, in this land of “Darindra Narayan” (land of poverty) is no crime and to rescore debts by the procedure of putting one in jail is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his willful failure to pay inspite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Article11 of the covenant. But this is precisely the interpretation which Court has put on the proviso to section 51, CPC and the lethal blow of Article 21 cannot strike down the provision as now interpreted. The words which hurt are “or has had since the date of the decree, the means to pay the amount of the decree”. This implies if read superficially, that if at any time after the passing of an old decree the judgement debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Article 11 of the covenant and article 21 of the Indian Constitution. The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifferent to pay, some deliberate or recusant disposition in the past or alternatively, current means to pay the decree or a substantial part of it. Unless there be some other vice or mens rea apart from failure to foot the decree, international law frowns on holding the debtor's person in civil prison, as hostage by the court. India is now a signatory to this Covenant and Article 51(c) of the Constitution obligates the State to "foster respect for international law and treaty obligations in the dealings of organized peoples with one another".

The provision emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here a consideration of the debtor’s other pressing needs and straightened circumstances will pay prominently.

Over-Crowded Civil Jails: This unfair and unreasonable arrest and detention of the judgement-debtor the civil prisons are over-crowding with data crossing hundreds in some of the state. The prison inmates in various jails can be categorized as convicts, under-trial and detenues. A total of 275 convicted civil prisoners were reported from 9 States/UTs at the end of 2007. Uttar Pradesh has reported the highest number of 213 convicted civil prisoners accounting for 77.5% of total convicted civil prisoners in the country. A total of 876 under-trial civil prisoners were reported from 7 States/UT at the end of the year 2007. Uttar Pradesh (828) has reported the highest number of under trial civil prisoners accounting for 94.5% of total such prisoners in the country.

Practically all prisons in India today are overcrowded in the sense that they are holding a larger number of inmates than what the prison facilities were originally constructed for. Nevertheless, the situation in some of the states tends to be aggravated by an acute lack of resources, and consequently, it is common to find prison populations exceeding maximum capacities with several hundred percentage points. Such levels of severe over-crowing constitute the most significant factor behind the calamitous health situation in many prisons around the nation. Over-stretched food budgets lead to malnutrition, inadequate sanitation facilities allow worms and vectors to thrive, and infectious conditions transmit rapidly. It is a vicious circle of agony, in which death is a frequent outcome. Justice Krishna Iyer while dealing with the bail petition in Babu Singh v. State of UP, remarked, "Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to 'fair trial' whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal or civil proceedings.

Right of Life and International Covenant: From the perspective of international law the question posed is whether it is right to enforce a contractual liability by imprisoning a debtor in the teeth of Art. 11 of the International Covenant on Civil and Political Rights:-

The Article reads: No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation. (Emphasis added). An apercu of Art. 21 of the Constitution suggests the question whether it is fair procedure to deprive a person of his personal liberty merely because he has not discharged his contractual liability in the face of the constitutional protection of life and liberty as expanded by a chain of ruling of this Court beginning with Maneka Gandhi's case. Article 21 reads: “Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law”.

The Court, from time to time, injects flesh, blood and vitality into the skeleton of the words used in Article 21 of the Constitution in consonance and harmony with international human rights instruments, and gives colour and content to the expressions made therein, and also provides it with the skin of living thought. In Hussainara Khatoon cases, the Supreme Court not only advanced the prison reform in favour of under-trials but also declared the right to speedy trial as an essential ingredient of Article 21. Reaffirming as well as paving way for the implementation of Article 14, clause (3) (c) of the International Covenant on Civil and Political Rights which lays down that everyone is entitled “to be tried without delay” and Article 16 of the Draft Principles on Equality in the Administration of Justice which provides that everyone shall be guaranteed the right to prompt and speedy hearing the Court directed the release of all those under trials against whom the police had not filed charge sheets within the prescribed period of limitation. Such persons were directed to be released forthwith as any further detention of such under trials would be according to the court, a clear violation of Article 21.

Conclusion
Hence the burden of proving that the conditions mentioned in Section 51, exist is on the decree-holder. That a debtor offers to pay the decree debt in installments need not necessarily mean in every case that he has at the time of the offer the means to pay the decree debt in full or a substantial part thereof. It is quite possible that he makes the offer to maintain his respectability before the public and under the hope and expectation that money would be forthcoming in future for payment of the installments. It follows that the person should not be subjected to arrest and detention on the sole ground that he owns a few items of property if the decree-holder is not a position to establish refusal or neglect to pay the decree debt as provided in the proviso to section 51, CPC. The judgement-debtor should be held liable for nonpayment of the debt only after looking into all the aspects and the circumstances in which he was not able to pay his debt. The coordination between the various administrations will also result into the fast disposal of the civil cases.
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# Sarkar’s Code of Civil Procedure, 1908, Vol1, Edn. 3
# J.K. Mathai v. Luckose Kurian, AIR 1979 Ker 235
# Jolly George Varghese and another v. Bank of Cochine, AIR 1980 SC 470
# Hussainara v Home Secretary, AIR 1979 SC 1360 at 1364; Hussainara Khatoon (I) v Home Secretary, AIR 1979 SC 1369; Hussainara (III) v Home Secretary, Bihar, AIR 1979 SC 1377.
# International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force on 23 March 1976) 999 UNTS 171 (ICCPR).

The  author can be reached at: bhavya@legalserviceindia.com

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