“Right to speedy trial is a part of the fundamental right and an undertrial cannot be kept in jail for long”, ruled the Supreme Court (SC) recently while directing trial courts to decide bail applications within a week of their filing. A bench headed by Justice AK Goel also fixed a two-week time-frame for all high courts to dispose of such matters. The apex court issued a series of directions to speed up the criminal justice delivery system saying, “Deprivation of personal liberty without ensuring speedy trial is not in sync with Article 21 of the Constitution (right to life and personal liberty).”

Adherence to time-frame should be a criterion while high courts prepare annual confidential reports of trial court judges, the SC observed. Magistrates should conclude cases where accused are in custody in six months, while a sessions court should do so in two years. Simultaneously, it asked the lower judiciary to dispose of all five-year-old criminal cases by the year-end.

Judges often say that bail is the rule and jail is an exception. This may be true in theoretical parlance but not in the practical sense. Those who are affluent and have both money and muscle power can afford bail easily, whereas the weak, poor and vulnerable rot in overcrowded jails for long. How did film star Salman Khan in the high profile Mumbai hitand-run case, Satyam convict Ramalinga Raju and many top politicians from Bihar, Uttar Pradesh and Tamil Nadu manage to secure bail without any problem.

Such instances strengthen the public perception that our judicial system is pro-rich and anti-poor. Jail and not bail still continue to be the norm in respect of the poor. Needless to say that out of an estimated 4.18 lakh prisoners in the country, 67 per cent are undertrials. About 65 per cent of them spend three months to five years in jail before securing bail. Those who are finally acquitted end up paying for a crime they had never committed. This dismal state of justice is usually attributed to the shortage of judges and infrastructure.

Even the amended provision of Section 436A of the Code of Criminal Procedure, which entitles those undertrial prisoners who have completed half of their likely jail term to bail on personal bond, could not be of much help to them for want of its proper enforcement. As a result jails are getting more and more overcrowded across the country. At the same time, overcrowding has its adverse effects. Housing petty offenders with hardened criminals due to space problem can even turn them into hardened criminals in a short span. Many gangsters recruit members of their criminal gangs out of these redeemable offenders. Overcrowding hampers efforts to check the inflow of drugs inside jails, maintain discipline and provide food, clothing and health-care to inmates.

As far back as 6 September 2014, a Supreme Court bench of Chief Justice RM Lodha and Justices Kurian and RF Nariman had asked the Centre for a roadmap for fast-tracking the criminal justice system as well as directed the lower judiciary to depute judges and magistrates to hold court in jails and release undertrials. But its directions have not been complied with.

While an overburdened judiciary is a major cause for the delay in justice, other shortcomings in the criminal justice system too require urgent attention. Police and prison officials, for example, often fail to fulfill their roles leading to long delays in trials. That most of the undertrials come from disadvantaged social groups like minority communities and Dalits is common knowledge. Illiteracy, lack of resources and awareness are some other problems and constraints. Hostile police and prison authorities are rarely of any help to them despite the SC’s several rulings for a quick bail and fair trial in their case.

The bail norms in our country are often violated as there is no uniform, object and clear set of rules to guide judges in taking decisions. It is the sole discretionary power of the judge to grant bail. The Law Ministry has now approached the Law Commission to review the existing bail provisions on the lines of the United Kingdom (UK) and the United States (US) to cut down judicial discretion. In the UK if a court withholds bail, it is required to give reasons for doing so. Likewise, in the US, an accused has the right to bail unless there are sufficient reasons for not granting it.

The overall aim should be to bring parity between the rich and the poor so far as the right to bail is concerned. All should be equal before law as per Article 14 of the Constitution (Equality before law). The government ought to be committed to ensure that every accused gets a fair trial and speedy justice. A law should always be based on logic and common sense. Any arbitrariness in executing it is undesirable.

It goes without saying that tackling the problem of undertrials is the joint responsibility of the Centre, state governments and the judiciary. They too have fundamental rights to life and speedy trial of their cases like other citizens. The judiciary must now dispose of their cases expeditiously. Police must file their case papers in courts well in time to avoid any delay in their release. Free legal aid should be made available to them to meet the ends of justice. The sooner this is done, the better it will be for administration of the criminal justice system.

It is not as if these measures have not been suggested before. However, the callous attitude of authorities and contempt for the law have hampered justice being meted out to this class of prisoners. If there is one area where judicial activism must find strong expression, it would be in ordering exemplary punishment and heavy fines on those officials who come to violate the human rights of undertrials and disobey the apex court’s order on setting them free. Their release would not only help ease pressure on our correctional homes but also help in creating better conditions there.

The writer is an Advocate, Supreme Court of India and Delhi High Court.