A Criminal Law regime, both substantive and procedural, has to accord special attention to the poor. What are the crimes that are committed mainly due to poverty? Do the Criminal Courts view the poor with due sensitivity, whether as suspect, accused, convict, victim or witnesses? Do the poor have satisfactory opportunity to defend themselves when facing criminal trial? Neglect or lack of due attention towards these relevant aspects may not only spread distrust in the established order but may also lead to further breakdown of order and impede the developmental process.
To secure a social order based on the socio-economic and political justice. This is evident from the text of Preamble to the Constitution which strives for attainment to all its citizens of justice. It is to be appreciated that justice - social, economic and political would alone bring a desired order.
What then should be the road map and strategy to apply criminal law provisions in regard to the poor? Broadly, the desired action may take one or more of following forms:-
1. Affirmative action. To illustrate action for land reforms or to provide job guarantee to the poor.
2. Law Enforcement e.g., to arrest
(a) Bonded labour - Bonded Labour System (Abolition) Act, 1976
(b) Begging - (Bombay) Prevention of Begging Act, 1959
(c) Prostitution - Prevention of Immoral Trafficking Act, 1956
(d) Untouchability - Protection of Civil Rights Act, 1955
(e) Indebtedness
Obviously public participation is an utmost necessity in these efforts. Role of NGOs need not be highlighted to give proper focus to areas warranting affirmative action.
Vital Role in Law Enforcement & Administration of Justice has to be played by:-
1. Courts
2. Police
The police is authorized to detain anybody found begging on the streets. Implementation of law takes more time rather than welfare of the beggars.
Challenges to criminal law with regard to the poor are numerous and call for major structural reforms and attitudinal changes.
1. Lack of knowledge on the part of the poor; and
2. Lack of courage to face the inadequacies and ills of the system.
Custodial violence in police custody is in violation of the Supreme Court directive in D.K. Basu v. State of West Bengal, MANU/SC/0157/1997 : (1997) 1 SCC 416. Where a deceased was wrongfully confined in police custody on suspicion of theft and was beaten to death when his wife was being raped by the policemen. The Supreme Court held that the policemen should have been charged under section 302, Indian Penal Code and awarded death sentence, as murder by policemen in police custody is in the category of rarest of rare cases deserving death sentence.
Anti-poor bias of criminal law is also a major problem.
In Unnikrishnan JP v. State of Andhra Pradesh, MANU/SC/0333/1993 : (1993) 1 SCC 645, some of the unenumerated rights listed out by the Supreme Court were as under:-
(a) The right against bar fetters.
(b) The right to legal aid.
(c) The right to speedy trial.
(d) The right against hand cuffing.
(e) The right against delayed execution.
(f) The right against custodial violence.
(g) The right against public hanging.
Marginalised sections who are to face such challenges include
· Poor
· Women
· Children
· Physically and mentally handicapped
· Disabled
· Trans-genders.
Indian Penal Code has within its fold a Classification of Crimes wherein the total number of crimes relating to three major segments are given below.
Property - 85
Person - 79
Documents - 32
58% of the total number of sections out of the Indian Penal Code text are meant to protect the interest of the elite.
In Sreerangye's case, it was held that poverty cannot justify grave offences.
Bail means to set at liberty a person arrested or imprisoned, on security (or bail) being taken for his appearance on a day and at a place named. Bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail (and possibly be brought up on charges of the crime of failure to appear).
It would be unjust and unfair to deprive a person of his freedom and liberty by keeping him in confinement, despite the assurance of his presence in the court whenever required for trail by the court.
Bail is set by the judge during the accused's first appearance.
The amount of bail is generally an amount determined in light of the seriousness of the alleged offence.
Bail in criminal cases is given for the appearance of the person bailed to take his trial or attend further examination.
It permits an accused person to be given bail till the final hearing of bail application in court. However, if an accused is already in jail, the provision of interim bail is cancelled.
Anticipatory Bail under section 438, CrPC allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence.
An arresting process is said to be bailable when the person arrested may obtain his liberty on giving bail.
The Supreme Court pointed out in the case of Sidharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 644 that a great ignominy, humiliation and disgrace is attached to the arrest. As reported, by and large, nearly 60% of the arrests are either unnecessary or unjustified. As held, the arrest should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstance of the case.
As soon as a person is arrested, he must be apprised of his right to apply for bail. A person released on bail is required to execute a personal bond and also to furnish a bond of security for a certain sum of money fixed by the court. The surety undertakes to pay the amount to the court in case the person released on bail does not present himself during investigation or in the court on the date of hearing in accordance with the terms of the bond.
The entire system of monetary bail is anti-poor since it is not possible for a poor man to furnish bail because of his poverty. Even in the case of bailable offences where the accused is entitled to secure bail as a matter of right bail is not granted by the court unless the defendant is able to secure a surety.
Poor do not possess sufficient means to furnish bail. They are not able to avail surety. Hence, they are unable to secure bail to get free.
In some cases, they have remained in detention for even longer periods than the maximum term of imprisonment laid down under the concerned penal provisions without their trial having started.
The courts are interpreting the provisions of bail in strict sense and the new theories of bail are spelled by them; Hussainara Khatoon (I) v. Home Secretary, State of Bihar, MANU/SC/0119/1979 : (1980) 1 SCC 81.
Protective custody in jail of women not accused of any offence but who are either victims of the offence or needed to give evidence on the plea of lack of welfare homes, held, violates article 21. Burden would be on the State to maintain rescue and welfare homes for such women. Immediate release was directed by the court of such women and children in 'protective custody' and to be kept in welfare homes.
As regards under trials a right of speedy trial is vested in them. Investigations should be completed within a time bound programme. Action directed against non-commencement of trial since several years.
Bail system as prevalent is oppressive and discriminatory against the poor. Courts and police must abandon the antiquated practice of release only against the bond with sureties and permit release on personal bond. What has been stated here in regard to the court must apply equally in relation to the police while granting bail.
As per a survey made on 1 April, 1997, the under trials constitute 54 per cent. of the total jail population.
1. Release
2. Speedy trial
The snail paced justice delivery system saw more than two lakh poor under-trial prisoners languishing in jail for many years, in many cases exceeding the maximum sentence for the crime. Lack of coordination between the Centre, judiciary and State Governments and also because they did not have anyone to stand as guarantors nor assets to furnish as bail bonds, the poor continued to suffer in prisons. A missionary effort by the Union Ministry for Law and Justice threw up very unexpected results - 5.6 lakh under-trials released on bail, 77,940 discharged and 68,774 convicted, majority of whom were released for having already served their sentence as under-trials.
1. Physical and sexual violence
2. Judicial corruption
3. Faulty eye-witness identification
4. Manipulation in filing of charge-sheets and FIRs
5. Shoddy investigations
6. Biased judiciary
There is also scope for abuse in cases of OMNIBUS FIRs in which the accused is identified only as 'an unruly mob' or 'a mob of 10,000.' It gives a handle to the Police to round up even innocent people and ill treat them. Instances are also not uncommon about filing of false charges against youth of minority community arbitrarily detained. It has been observed that most of those who remain in jail belong to marginalised dalits, minorities, or tribal communities.
Human Rights Watch has at various times taken up problems of poor under- trials. According to an estimate by them:-
Number of jails in India - 1500
Capacity to hold prisoners - 2.5 Lacs
Actual inmates - 3.5 Lacs
Number of under-trials were nearly 1.7 Lacs as on 17 August, 2009.
According to a survey held on a different date pattern of prison inmates was
59 to 70% - Under trials (2.45 Lacs)
41 to 30% - Convicts (1.05 Lacs)
Pattern of under-trials as regards category of offences is as follows:-
Petty offences - 70% (1.7 Lacs)
Others - 30% (0.75 Lacs)
In Tihar Jail, in 1993, out of 280 women prisoners only 20 were actual convicts while 260 were under trials.
Majority of under-trials have one or more of following:-
· Poor means
· Underprivileged
· Rural and agricultural background
Hence, there is an immediate case for reforms and improvements in the system of prison rules and administration. The object of Criminal Procedure is to provide a machinery for the timely and proper Administration of Criminal Law. Preventive measures are needed to be introduced for the safety and protection of society from suspected persons.
Provisions exist that call for security for keeping the peace and for good behaviour. Anti poor bias of legal procedures in their operation is also manifest. CrPC provisions are beyond the poor due to :
· Poverty
· Illiteracy
· Ignorance.
In many cases, the period of detention has overshot the sentence that could have been awarded to them in case of conviction.
Poor suffer due to many procedural infirmities including due to delays in:
· Filing of FIRs
· Non-finalisation of petty cases like prohibition and minor offences.
Usual excuses given by the law enforcement agencies relate to understaffing:
· Police force
· Courts
· Prisons
Plight of those concerned with the criminal justice system is also affected due to:-
· Jails which are overcrowded.
· Prisons have poor sanitation.
· Prisons are often without basic facilities
· Victims of torture and violence at the hands of other detainees and prison staff.
· Inefficient prison administration.
· Institutional corruption and caste discrimination.
Incarceration, even when the inmate is later released, has adverse social, financial and emotional impact.
Detainees with psychiatric problems get no medical care and instead, are put in solitary confinement.
According to State Prison Manuals, District and Session Judges are expected to function as ex-officio jail visitors. However, due to their heavy workload in courts, they rarely have time to visit jails.
It may be recalled that Right to Health defined as the right to the enjoyment of the highest attainable standard of physical and mental health (According to WHO, UDHR and ICESCR).
Justice R.S. Pathak in Hussainara Khatoon (I) v. State of Bihar, MANU/SC/0119/1979 : (1980) 1 SCC 81 underlined the unsatisfactory position in law when he recorded that there was no mechanism with the CrPC which, "enabled the release, in appropriate cases, of an under-trial prisoner on his bond, without sureties and without any monetary obligation". There is urgent need for a clear provision.
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