‘Pandemic showed us the criminal justice system’s gaps’

WITH OVER 200 Covid-19 cases detected in the state’s prisons over the past month, the Bombay High Court took suo motu cognizance and has been hearing from the state government and other parties on steps that can be taken to decongest the jails.

Sadaf Modak speaks with Dr Vijay Raghavan, project director, Prayas, a field action project of Tata Institute of Social Sciences, which works on prison reform in terms of the present situation and the lessons learnt from the pandemic for the criminal justice system.

Overcrowding has remained a constant feature in our jails. Is there an urgent need to decongest the jails?

The whole objective of the criminal justice system is to rehabilitate and facilitate social re-entry of those who are processed by the system. If that is the main objective, then it is very important that the custodial conditions are decent. The experience of punishment and how one is treated inside jail is linked to their rehabilitation and re-entry into society. There are studies, which show that this experience has a link with reoffending. It is a mandate of a civil society, the constitution, which guarantees the basic right of every person.

India is also a signatory to the UN Standard Minimum Rules for Treatment of Prisoners. It is enshrined in law, so there is a need to ensure that the condition for prisoners are decent, which does not happen in an overcrowded jail. In a pandemic, it becomes even more important to decongest because Covid-19 spreads in close contact and overcrowding is one of the reasons for its spread.

The High Court has been discussing the steps that can be taken to decongest jails. What do you think is a solution to overcrowding in jails?

A state-appointed High-Powered Committee had given guidelines on who can be released last year. Due to a sudden increase in active cases then, there was a push to release prisoners following the Supreme Court’s directions to decongest the jails. In the end, however, it is a judicial decision and an administrative order by the committee cannot override a judicial process.

It made recommendations and trial courts were told to take a decision on release. We are in a pandemic, if these cases are to be decided on merit, many will not be released. Some may not have documents, which are required or may be unable to arrange for cash or surety to be released. The courts were also not functioning with full staff and had staggered timings among judicial officers as well. This led to delay in decisions on bails, in conducting of trials.

While the committee had expected that there will be a release of over 17,500 prisoners, the actual number was around 10,000. Meanwhile, arrests have been taking place leading to an increase in the population again. The Supreme Court has said the Arnesh Kumar judgment should be followed (it said arrests should not be made automatically in cases where punishment is a maximum of seven years or less). I do not know to what extent it has been adhered to.

There were some concerns and apprehensions about the safety of victims and recidivism of those released on temporary bail or emergency parole.

Yes, that is why the final discretion about release is with the courts. Parole too is granted on the basis of certain criteria. A report is called from the local police station to assess if the person being released will be a threat. Even those who were released were mandated to report to the local police station regularly to ensure that no violations take place.

We have seen very a few cases of offences committed by those released. The official rate of recidivism in India is anyway at 6-7 per cent as against over 50 per cent in the West.

A study was conducted by Prayas to assess the pandemic’s impact on criminal justice affected persons and their families. Are existing schemes enough to facilitate re-entry of those released?

The study was in the context of those released during the pandemic. Among our findings was that only 12 per cent continued to earn after being released. Many faced stigma, including some who were not able to go to their villages and find shelter. Some had to walk long distances to get to their homes since lockdown restrictions were in place.

Even in normal situations, rehabilitation is neglected. We should ideally have a separate department for rehabilitation and corrections, not only for prisoners but for women being released from protection homes, children from observation homes or special homes. We have some financial schemes for them but they are not sufficient for the many issues this population faces.

There are no schemes for undertrials, many of whom also face as much social stigma even after they are cleared of all charges. There is no larger debate or public concern for them as people see them as those having offended society.

Are there lessons from the pandemic for the criminal justice system?

Yes, the pandemic has shown us where the gaps are, it has shown us ways of doing things better. For instance, our bail system focuses on a payment of cash or arranging of a surety to secure bail for an undertrial. This makes it difficult for many to secure bail. Instead of being a finance-dependent system, it could have been one based on risk assessment.

Over 8,000 undertrials were released last year to decongest jails. A very small percentage has reoffended. This shows that they were not a threat to society. They would not have been released in normal situations but one should understand that they are innocent until proven guilty.

Also, we are callous about filling vacancies. There has been a tremendous load on those in the criminal justice system including the prison staff, some of whom lost their lives due to Covid-19. They worked round the clock, what about their mental health too? If they are not well taken care of, they are likely to take it out on prisoners.

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