It definitely cannot be ever taken for granted when none other than one of the most eminent, experienced and erudite Supreme Court Judge – Justice Sanjay Kishan (SK) Kaul who is also the Executive Chairperson of the National Legal Services Authority (NALSA) himself has on September 18, 2023 publicly expressed his most serious concerns about the sad plight and traumatic situation of undertrial prisoners who keep languishing in jail for years and years without their case being heard even once. While speaking most elegantly, most eloquently and so also most effectively at the launch of Under Trial Review Committee (UTRC) Special Campaign 2023, by the National Legal Services Authority (NALSA), Justice SK Kaul minced just no words to say in no uncertain terms that:
We could not have a scenario where we perceive that the only punishment that can be delivered is keeping people at the undertrial stage irrespective of whether the prosecution has the ability to get the conviction ultimately. This is indeed most unfortunate and more earnest efforts must be definitely made by the governments both State and so also the Central to ensure that no accused is kept in jail only because he/she has no money to finance a lawyer to fight a case.

Adding more to what is stated hereinabove, the Apex Court Judge – Justice Sanjay Kishan Kaul further hastened to add that:
This is a disturbing trend which I find, where people remain behind bars as undertrial, and the presumption is, whether they are able to get the conviction or not, this is what may be the punishment or sentence is. Can on earth there be anything more unfortunate than this? It is because of this unpalatable truth and to help such needy undertrials that the Under Trial Review Committee (UTRC) Special Campaign is being undertaken from 18th September to 20th November, 2023 across all the districts of India.

Needless to say, the campaign will also undoubtedly accelerate the existing functioning of the Under Trial Review Committees (UTRCs), which are district level bodies that are headed by the respective District and Sessions Judges with the District Magistrates, Superintendents of Police, Secretaries, District Legal Services Authorities and Officers-in-Charge of Prisons as its member.

It must be specially noted here that the UTRCs which have been constituted in furtherance of the most commendable directions of the Supreme Court of India in the case of In Re-Inhuman Conditions in 1382 Prisons in 2015 have in the last five years so very commendably in the paramount interest of the undertrial prisoners recommended the release of over two lakh prisoners which ultimately has culminated in the release of 91,703 prisoners across India. It would also certainly not be out of context to mention here succinctly that the NALSA’s campaign ‘Release_UTRC@75’ that was laudably undertaken in July and August of 2022 had eventually led to 47,618 recommendations for release of prisoners out of which 37,220 prisoners were then finally released.

It would be germane to note here that just recently we had witnessed that the Apex Court in Sonadhar vs The State of Chhattisgarh in Petition(s) for Special Leave to Appeal (Crl.) No(s). 529/2021 and cited in 2022 LiveLaw (SC) 1007 that was pronounced finally on November 29, 2022 had directed NALSA to identify all the undertrial prisoners who have been granted bail but are still in custody for not furnishing the bail bond or the conditions to ensure that their bail modifications applications are filed immediately. The Apex Court also most commendably directs States to furnish data of undertrial prisoners who remain in jail as they can’t satisfy surety or comply with other conditions. It was held in this case by the top court that:
At the inception, we flag the issue of under trial prisoners who continue to be in custody despite having been granted benefit of bail on account of their inability to fulfill the conditions of bail. In order to have a realistic estimate of it, each jail authority would be required to convey to the State Government the data in this behalf and the State Government would then have to send it to NALSA so that a scheme can be worked out in this behalf. Assistance would have to be provided seeking variation of the terms of the bail in such cases.

We thus call upon all the State Governments to issue directions to the jail authorities to submit the details of such cases in a chart form indicating:

1. the name of the under trial,
2. the offence charged,
3. the date when the bail was granted and
4. the conditions of bail which have not been met and how long that period from the date of the bail order till now.

The State will ensure that these details are made available by the jail authorities to them within a period of 15 days from today and forward the data to NALSA within one week thereafter, whereafter the NALSA will process for making necessary suggestions how to deal with this issue and of course provide legal assistance wherever necessary. The assistance may be obtained from Tata Institute of Social Sciences (TISS) by NALSA in this behalf as it is stated that such an endeavour has been made by them already in Maharashtra.

SLP(Crl.) No. 529/2021

E-Prison Module
It is further pointed out by the Apex Court in this very judgment that:
Mr. Devansh A. Mohta, learned Amicus Curiae has drawn our attention to the developments in Karnataka where the Karnataka State Legal Services Authority informed that e-prison Module has been implemented in all 52 prisons in Karnataka but legal aid information module was not enabled in Karnataka prisons. The suggestion was that the said legal module be enabled to facilitate the categorizing of prisoners receiving legal aid.

The steps taken in pursuance thereto with the meeting held with NALSA along with three Amici assisting us here, has produced a result that e-prison module, having important features, which enable effective monitoring, the e-prison portal is ready to be uploaded accordingly. The suggestion from the learned Amicus is that this should be implemented across the country with coordination between State Legal Services Authorities and the prison authorities. The needful be completed within a period of two months and the compliance be informed to NALSA so that it can be placed before this Court.

One of the suggestions made is e-prison module can be modified for uploading data regarding orders granting bail, status of implementation of the orders granting bail and orders of acquittal. The needful be implemented within the aforesaid period of time. It is suggested by learned Amicus that if the aforesaid experimentation proves to be fruitful, the same should be extended across the country in all the States and the NALSA will specifically inform the State Legal Services Authorities though they are already represented before us and should start operation forthwith.

Compliance Of Pre-Mature Directions By The States
What’s more, the Apex Court then further propounds in this very leading judgment that:
Ms. Liz Mathew, learned Amicus Curiae points out that in e-Prisons application suite is developed by NIC which computerizes and integrates all activities relating to prison management. It is suggested that in respect of life convicts a field for eligibility of filing premature application may be incorporated along with another one for status of premature release application as it would facilitate easy compliance of the timeline directed by this Court in order dated 07.07.2021. We are of the view that this is a desirable process and should be forthwith explored by NALSA in collaboration with the Ministry of Home Affairs and it will be coordinated by Mr. K.M. Nataraj, learned ASG who is appearing in this matter.

It has also been mentioned that for the special remission in connection with Azadi Ka Amrit Mahotsav, a special module was developed by NIC and Ministry of Home Affairs and it has been given to understand with discussion with the authorities that this has not been incorporated with respect to premature release in normal course. Thus we consider proper to direct that NALSA and Ministry of Home Affairs may explore how premature release for life sentences cases can be included in the system for periodic review so that the matter is not delayed.

It certainly cannot escape our unremitting attention to the glaring fact that at the very commencement of his address at the launch of Under Trial Review Committee (UTRC) Special Campaign 2023, by the National Legal Services Authority (NALSA), Justice SK Kaul said that campaign is a part of the continuous efforts by the NALSA to ensure that no one is detained in prisons without exercising their right to be heard for release under the provisions of the law. It is worth noting that the issue of undertrial prisoners languishing in prisons despite being eligible to be reviewed for release has continued to come up before the Supreme Court as well as High Courts. What is most worrying to note is that the records to National Crime Record Bureau data show that around 18 lakh prisoners are admitted to prison in a year, which also reflects a huge inflow of undertrial prisoners.

Most significantly, what constitutes the cornerstone of Justice SK Kaul’s entire address is when he sagaciously propounds that:
Our responsibility as Judges is that law is followed in letter and spirit and it does not discriminate anyone on the basis of manmade qualifiers. He underscored that this responsibility is also the bedrock of the rule of law and access to justice. He also pointed out that in the last few months, several directions had been passed establishing crucial digital frameworks and procedures to ensure a smooth flow of information between the different organs of the criminal justice system. This has been done to ensure that there is no delay in filling appropriate legal recourses once the prisoners become eligible.

Frankly speaking, Justice Kaul rightly pointed out that one cannot turn a blind eye to the fifth side of the criminal justice system. He had also no hesitation in conceding rightly that the continued detention of the uneducated and poor prisoners can have a severe impact on them as well as their families. He also was quite forthright in candidly conceding to state that:
In fact, I found that it is this section of society that is more prone to detention, and people who can afford appropriate legal assistance invariably get bail at an earlier date. It’s this aspect which we seek to tackle in this process.

Detention today is a view in the context of development

It also merits mentioning that Justice Kaul lamented that the detention before conviction exerts financial burden on the accused and their family. He underscored that the same is recognized in the 2030 Agenda for Sustainable Development that was adopted by the UN in 2015. The inclusion of access to justice in the said agenda is a recognition of an intrinsic link between access to justice and the ability of people to receive equal treatment under the law and have their rights protected.

As we see, Justice Kaul also highlighted that the UN principles and guidelines of access to legal aid in the criminal justice system, 2012, rationally affirm legal aid as foundation for enjoyment of other rights, and thus, an effective legal system that is so very important for promoting inclusive and sustainable growth strategies. He also stated that a demonstrable reduction in a number of unsentenced prisoners is an implied measure of progress. Thus, UTRC is a unique mechanism in this context, being a district-level body mandated to review the cases of prisoners who are recommended to be released periodically.

No doubt, Justice Kaul very rightly underlined that the success of this campaign rests upon the shoulders of the State Legal Services Authorities who must lead this initiative with duty and responsibility. He summed up to say that:
After all, the whole thing is to work from upwards level, that is, start from the base level and move upwards, and that is the whole premise of NALSA. Finally, he then aptly concluded his most brilliant address by emphasizing that the key components in any campaign are Preparedness in terms of ground work, Adherence to the timelines and Robust reporting.

In sum, we thus see that Justice SK Kaul has made it indubitably clear that people remaining behind bars as undertrials is a disturbing trend. Therefore, everything must be done under the sun to ensure that the undertrials are able to get fair trial and are not just kept languishing in jails for decades without even facing trial. It is also now crystal clear that the UTRCs mandate is to prevent imprisonment solely due to poverty or inadequate legal representation as Justice Kaul made it clear also and they must be provided quality legal aid. There can be no gainsaying that Judges must therefore adhere to the famous adage as stated by former Apex Court Judge late VR Krishna Iyer time and again that, Bail is the rule and jail is the exception. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh