Start Paying Up Mr Jailer

With 450,000 plus prisoners, Indian jails can match the population of countries like Malta or Iceland; in fact, we have three times more prisoners than the world's largest retailer Walmart has employees. In spite of being mammoth and filled to the hilt, Indian prisons are still waiting for prison reforms that would make them more humane for the imprisoned. Besides being criticized for inhuman behavior, unsafe environment, unhygienic lifestyle and discrimination, jails in India are also home to more than 3,00,000 undertrials who are awaiting their hearings.

A serious accusation against our judiciary is their foible of not having been able to provide justice to more than 80 per cent of all prisoners in Indian jails — these 80% are undertrials; prisoners who've been jailed, but are yet not convicted of any crime. Various Indian studies done over the years show how almost 2 per cent of prisoners (awaiting trial) have already spent more than 2 years in jail. A simple calculation shows that each year in jail for all the cumulative undertrial prisoners, leads to a productivity loss for the nation of Rs.135 crore (considering per capita income to be Rs.45,000 per year on an average). The cumulative productivity loss and opportunity cost for the nation – considering the innumerable number of years that lakhs of undertrial prisoners have already spent in jail – would run into a few thousand crores.

Given the environment in our jails, which is literally a breeding ground for criminals, undertrial prisoners – even not originally guilty – get converted into seasoned criminals simply because of their peer group and also because once a person becomes an undertrial, their future (professional and social) is more or less destroyed!

Given the fact that most of these undertrials have been imprisoned for petty crimes and have languished in jails for more duration than what they would have been sentenced to, had they been guilty, there is a crying need to immediately release a significant number of such undertrial prisoners. Even at the start of this decade, prison statistics showed that in India, around 78,000 undertrials were detained for more than 3 months before being produced to the court while around 10,000 prisoners waited for 3 long years for their fair-trials and around 4,000 prisoners had already spent 5 years in jail awaiting their assessment.

The massive number of undertrial prisoners exemplifies random and unaccountable arrests made by police under the ramshackle reasoning that imprisoning an accused will ensure that the person does not interfere in future investigations (Kanimozhi, Kalmadi, Raja et al have been kept behind bars on this reasoning). Given the insipid reasoning of the police, one wonders why isn't there still a law that ensures that an undertrial – against whom the police has been conducting elongated investigations and whom the courts haven't sentenced yet – has to be released from jail on bail the moment six months of investigation are over. Worse comes to worst, the courts can order 'house arrests', as is done in Western countries. But to arrest and jail a possibly innocent individual indefinitely – and ergo destroy his future beyond repair – is a criminal act on its own.

Hasan Ali, who was peddled by the Enforcement Directorate as being the king  of money laundering in India, was arrested in March 2011. The Bombay High Court granted him bail on August 12, 2011, commenting that "there are no ingredients of proceeds of crime in the case made out by the ED against the applicant (Khan). He deserves to be released on bail." Yes, the Supreme Court has stayed this decision – but the fact is that when such a decision to release an undertrial prisoner can be taken for such a high profile prisoner, why cannot the same be taken for small fry truants who're 'in' simply for picking pockets?

One reason the police cares two hoots for this question is because as of now, there is no law in our legal system that forces the police or the government to lavishly compensate prisoners, who have been later proven innocent. If such a law were in place – which compensated innocent prisoners for not only the time they spent in jails but also for the loss of future earnings (as no professional organisation would ever recruit a person who has been in jail) – our law-enforcement machinery would become careful while arresting the accused.

This is quite a regular feature in the Western hemisphere. For example, in 2008, in Kansas City, the court paid $16 million to a convict who spent 10 years in jail, when it was later found that he was innocent. In UK, in 2010-11, three prisoners were compensated with £25,000 for being wrongfully imprisoned, while around 280 suspected offenders were paid £10,000 in lieu of delays in processing of release papers.

Justice delayed is justice – and not compensation – denied. The government should release all undertrials post six months' imprisonment and later on, should compensate those who have been proven innocent. Let a hundred criminals go free; but ensure that the innocent pauper who is arrested, lives to see another day as a king.