April 29, 2025April 29, 2025 Access to Justice for Poor Prisoners – A Distant Reality! By Saumya Raj (1st Year, Student of B.A LL.B, CNLU Patna – Batch of 2029) Introduction “Justice means set of principles whose function is to distribute entitlements to valuable resources – liberties, opportunities, income and wealth – among a plurality of agents competing over them.”[2] In late 1800’s William E Gladstone stated ‘Justice Delayed is Justice Denied’ thereby bringing concern to the notion that if justice is not deciphered timely it results in no justice. Indian society comprises of large sections of people coming from those who can afford to access justice and on the other facet of coin comes the marginalized groups for whom Justice is a peril. Our legal justice system has provided well-articulated system to ensure no community is fed with the spoon of atrocities, unjust laws or discriminated treatment. Article 14 and 21 of the Constitution deals with the fundamental right to access justice. In Anita Kushwaha v. Pushap Sudan[3], the Hon’ble Supreme Court of India ruled that “the right to justice is a component of the right promised under Articles 14 and 21 of the Indian Constitution.”[4] When we talk about law, the body which plays a major role in its interpretation, access and assimilation are courts, police, lawyers, judges and tribunals. Judiciary is the third pillar of Indian democracy which promises for an egalitarian and just society for people belonging to different caste, creed, culture and religion. A society becomes a truly democratic society when people have unhindered and open access to legal society and legal tools, timely access to lawyers, police judges etc. U.S. Supreme Court Justice Lewis Powell Jr. said, “Equal justice under law… is perhaps the most inspiring ideal of our society, it is one of the ends for which our entire legal system exits… it is fundamental that justice should be the same, in substance, without regard to economic status.”[5] When we talk about the tools that compromises of the justice system and the obstacles a common man faces in the process of accessing his/her rights then we can say that every section of society has different evolving problems and a different story in accessing justice for their concerns, for instance, from times immemorial women have been fighting for equal opportunities; the deprived class have their own concerns over the unpathetic treatment given by the upper caste people even in this 21st century. In the process of delivering them justice different and crucial question arises in mind. Whether they have been provided with timely access to justice? What about those sections of society whose cause and plight remain unrepresented and unheard? These are some aspects which need to be discussed in forefront and answers have to be given or views needs to be put forward so that the society can become just in true sense. It is aptly said by Martin Luther King Jr. that, “Injustices anywhere is a threat to justice everywhere. We are caught in an in escapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.” Breaking down the long silence it’s high time for a constantly growing democratic country to look forward these issues. In spite of all the hurdles people have kept their faith in judiciary and law from long time for asserting their rights in a fair and neutral form. The mind and human instinct are deeply affected when the poor, helpless undertrials are denied from the basic rights of unequal representation in courts, long undertrials and mental cruelty they face from society. The environment and the continuous load of stress faced during the long days of trials, the changed and boycotting attitudes faced by the prisoners and sometimes innocent undertrials from the common people of society not only ruins their image in society but also put them in long mental traumas. Through this essay we would bring out the major concerns in accessing justice by poor under-trials and the holistic and cooperative approach needed for overcoming the termite namely, ‘inequality in accessing justice’. Constitutional guarantees and Role of Judiciary Incarceration is far from a holiday retreat; it devastates the mental well-being of undertrials, particularly given the abysmal and dehumanizing conditions of Indian prisons, which strip individuals of fundamental human necessities. Article 21 talks about the Fundamental Rights of Prisoners and Personal Liberty. The most vulnerable of the affected group of undertrials are women and children. The backlashing attitude of society towards the undertrials is another peril of injustice through which a person and his family members goes through during the trial stage. Undertrials are detainees who have not yet been found guilty of the accusations leading to their incarceration. They are currently undergoing legal proceedings in a competent court and are presumed innocent under the law.As per NCRB’s latest data, there are more than 2.8 lakh undertrials in prison, constituting a more than two-thirds of the prison population in India. [6] The data brought out by the report shows the vulnerability of the undertrials that remain incarcerated due to various factors such as under-representation due to poverty, thus keeping them in a state of stigma. At many times, the issue of decongesting Indian prisons has been raised however despite taking constitutional reforms till now the benchmark has not been achieved. The Indian Constitution mandates for separation of power between its three pillars – executive, legislative and judiciary. The main role of judiciary is ensuring the culprits are behind bars for the sake of law and justice and on the other facet the innocent gets their justice and legal rights. Besides the Constitution, Article 7 of the UDHR provides for equal protection under the law and equality of citizens before law. The Criminal Procedure Code § 436 and 436A says an undertrial can be relieved on their own personal bond if they have completed half the maximum sentence imposed on the conviction. The Right to Legal Aid stipulates that the government is duty-bound to furnish legal assistance to the accused in instances of poverty or financial incapacity. The Indian Judiciary has several other laws and sections to provide justice to undertrials but the question arises about the incapability and crisis of the system due to which it is lagging behind in providing fast justice to the poor undertrials. The adjudication of undertrials depend on the discretion power of courts. There is a strong need for reform in bail for undertrial system. At various occasions its found that courts do not give proper reason for denying bails, under represented marginalised communities are not able to collect money resources or property for receiving bail, which calls out for a dire need to reform and have a separate law on bail. Offences are categorised into two types- Bailable and non-bailable offence. A bailable offence is non serious in nature and can be granted a bail. The magistrate may grant bail for non-bailable offenses under specific conditions, such as considering the nature and gravity of the offense, the integrity of the evidence, the likelihood of ensuring the accused’s presence at trial, the reasonable fear of witness tampering, and the broader interests of the public or the State, among other factors.[7] Our criminal justice system has three laws on bails, mainly, ‘regular bail, interim bail, anticipatory bail.’ To gain a comprehensive understanding, it is essential to examine the crisis within the bail system. Overrepresentation of Undertrials: More than 75% of India’s prison population consists of undertrials, highlighting significant inefficiencies in the bail system. Judicial Reluctance: Chief Justice of India D.Y. Chandrachud emphasized an increasing hesitation among trial judges to grant bail, resulting in incarceration becoming the default.[8] The reluctance leads to a situation where imprisonment becomes the standard procedure, even for those who have not been proven guilty. In essence, rather than being the exception, denying bail has increasingly become the norm, resulting in more individuals being detained pre-trial. This shift away from the principle of presuming innocence until proven guilty towards a more punitive pre-trial detention approach signifies a troubling trend in the justice system. Bail Backlog: The backlog of bail applications further compounds the issue, extending the detention of undertrials awaiting trial. The disparity between the impoverished and the affluent in obtaining bail stems from the financial burden of securing bail. Therefore, the judiciary’s role is crucial in ensuring equitable treatment across all societal segments. Fundamental principles and objective of Code of Criminal Procedures with respect to indigent prisoners The ramifications of pre-trial detention are severe. Individuals presumed innocent endure the mental and physical hardships of incarceration, often facing more stringent conditions than those convicted. The incarcerated defendant forfeits his employment, if he has one, and is hindered from assisting in the preparation of his defence. [9] Equally significant is the heavy burden of his detention, which often weighs heavily on the innocent members of his family. The plight of poor undertrials for their release mainly due to harsh and expensive custody needs to be studied. “The Supreme Court has held that the unwarranted ‘cruelty and expensive custody’ inherent in the case of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.”[10] The Supreme court needs to formulate ways for secure release of undertrials and the need to decongest jails of avoidable and unnecessary detention. The Cr.P.C (Code of Criminal Procedure) has set of rules for the unnecessary detention and set of rules for release against unnecessary detention. Section 436 of the Code of Criminal Procedure (Cr.P.C.), which addresses the right to bail for bailable offenses, was amended in 2005. This amendment requires the police or court to release an indigent individual on a personal bond without requiring any surety.[11] Section 167 of the Cr.P.C. specifies the maximum duration within which the police must submit the chargesheet of the investigation to the court.[12] Section 437(6) basically solves the problem of delay in the trial process of certain cases. Section 437(7)[13] stipulates that if, at any point after the trial of an individual charged with a non-bailable offense and before the judgment is rendered, the Court believes there are reasonable grounds to think the accused is not guilty, it must release the accused from custody. This release is contingent upon the accused executing a bond without sureties, ensuring their appearance for the delivery of the judgment. In Re Policy Strategy for Grant of Bail In this matter, the learned Amicus Curiae, Mr Gaurav Agarwal (Respondent) points out how several prisoners despite being granted bail are not released from custody due to their inability to furnish bail bond or surety due to their financial conditions. And also cited how NIC (National Informatics Centre) and TISS (Tata Institute of Social Science) with joint efforts are looking forward to creating an e-prison software which will provide records of such prisoners and notify the legal service authorities such as the NALSA, SLSA and DLSA for acknowledgement and assistance in such cases. The Supreme Court herein held that the Right to Liberty (Article 21) includes right to be released grant of bail. The Law commission of India recommended the formation of a pre – trial detention review committee, which would review the case of the undertrial within 30 days and recommend about their grant to bail application. The respondent, Mr. Gaurav Agarwal, highlighted the financial incapacity of undertrial prisoners to furnish surety or bail bonds, resulting in their continued detention despite being granted bail. He urged legal service authorities such as NALSA, SLSA, and DLSA to recognize such cases and provide detailed reports on the failure to release these prisoners. Utilizing the e-prison software, he called for an expedited process to release prisoners without infringing on their right to life and personal liberty. This judgment represents a significant milestone in the context of granting bail, potentially alleviating the struggles of impoverished undertrials in their pursuit of justice. Poor prisoners pleading guilty due to their economic status To portray the misery of poor prisoners let us first consider this case study that illustrates the suffering of impoverished prisoners who plead guilty: “In 1996, a team from Delhi Police abducted 25-year-old Mohammad Ali Bhat in Kathmandu, Nepal. Bhat, a shawl trader from Kashmir, was taken to Delhi and wrongfully implicated in the Lajpat Nagar blast case. Subsequently, he was transferred to Rajasthan and accused in the Samlethi blast case. These fabricated charges resulted in Bhat spending years incarcerated in jails across Delhi and Rajasthan. On July 22 of this year, the Rajasthan High Court declared Bhat innocent. At 48, having been found ‘not guilty’, Bhat has lost 23 of his prime years to imprisonment, a consequence of India’s sluggish justice delivery system.”[14] There are numerous such cases which shows the lethargic condition of poor prisoners due to illiteracy, inadequate representation, and poor economic condition. This legal debacle leads to the punishment of innocent prisoners for their integrity, while those devoid of integrity are rewarded, thus subjecting the underprivileged to stigma and severe psychological distress. This irregularity in the judicial system has not only paralysed India but also to several other developed states. “Timothy Brian Cole (1960–99) was an African American military veteran and a student wrongly convicted of raping a fellow student in 1985. Cole was convicted by a jury of rape, primarily based on the testimony of the victim, Michele Mallin. He was sentenced to 25 years in prison. While incarcerated, Cole was offered parole if he would admit guilt, but he refused.”[15] In a press interview, his mother expressed that his most fervent desire was to be exonerated and fully vindicated. Cole passed away following a 14-year period of incarceration. This is a global issue and India has developed various laws to resolve this problem. Studies consistently demonstrate elevated rates of psychiatric disorders among prisoners, with some nations reporting a larger population of individuals suffering from severe mental illness within prisons than in dedicated psychiatric facilities. Despite the considerable demand for mental health care, these conditions often go unrecognized and receive inadequate treatment. Support to Poor Prisoners Scheme In alignment with the Government’s commitment to ensure comprehensive reach and inclusivity, the Ministry of Home Affairs introduced the ‘Support to Poor Prisoners Scheme’ in May 2023. This initiative aims to alleviate the burden on indigent prisoners who struggle to pay fines or obtain bail due to financial hardships.[16] Many of these prisoners come from marginalized backgrounds or low-income segments of society. The scheme endeavours to provide financial assistance to such individuals, enabling them to settle fines or secure bail within legal provisions. This support is anticipated to facilitate their release from incarceration, allowing them to reintegrate into society as responsible citizens. This scheme has various benefits which includes relief from monetary constants in obtaining bail. It would further help the marginalised and under-represented communities which will result in gaining faith in law and order. This scheme would also help in decongesting prisons. In M.H. Hoskot v. The State of Maharashtra[17], the Supreme Court established that providing free legal assistance to indigent defendants, even at the state’s expense, is essential for ensuring a fair, just, and reasonable procedure under Article 21 of the Constitution. Now, turning to the Bhartiya Nagarik Suraksha Sanhita 2023, we find modifications concerning undertrials. According to the Criminal Procedure Code (CrPC), if an accused has spent half of the maximum imprisonment period in custody, they must be released on a personal bond, with exceptions for offences punishable by death. The BNSS further specifies that this rule does not apply to offences punishable by life imprisonment or to individuals facing proceedings in multiple cases. To help with the hopelessness of poor undertrials various authorities have taken up the mantle. The National Legal Service Authority (NALSA) reaches out to the poorest of the poor sections in ensuring free legal aid service. In each state, a State Legal Services Authority has been established to implement the policies and directives of NALSA, providing free legal aid to the populace and organizing Lok Adalats. The State Legal Services Authority is overseen by the Honourable Chief Justice of the respective High Court, serving as the Patron-in-Chief, while a senior judge of the High Court is appointed as the Executive Chairman of SLSA. NALSA has extended assistance to 1,63,655 inmates.[18] Despite legislative amendments and welfare schemes aimed at aiding indigent undertrials, our nation continues to struggle with effective implementation. The burden of prolonged detention disproportionately affects the poor can be exemplified by the misery of every second poor prisoners. On such emblematic case illustrating the challenges faced by indigent individuals within the Indian judicial system found in the columns of newspaper was the case of Jai Prakash[19]. “Jai Prakash, aged 47, endured over 22 years of pre-trial detention due to his inability to furnish a Rs.30,000 surety bond. Despite legislative reforms and welfare initiatives intended to aid underprivileged undertrials, the plight of individuals like Prakash underscores persistent issues in the implementation of legal safeguards. On November 21, as part of the “Azadi Ka Amrit Mahotsav” commemorations, Prakash was finally granted bail. Seated across from the District Jail in Ambphalla, Jammu and Kashmir, he appeared visibly affected yet relieved, holding a box of sweets which he consumed with a mix of hunger and resignation.”[20] This incident highlights the ongoing struggle for justice faced by marginalized individuals within the Indian legal framework, despite efforts by organizations such as the National Legal Services Authority (NALSA) and State Legal Services Authorities (SLSAs) to provide equitable legal aid and facilitate timely trials. After seventy-five years of Independence, if individuals like Prakash are denied their rightful entitlements and treated without basic human dignity, the true spirit of “Azadi Ka Amrit Mahotsav” cannot be fully realized. It is rightly said that poverty teaches us to cherish the life we lead, and if justice is truly blind, the judiciary must ensure that every life is esteemed equally. Role of family support person in the release of indigent prisoner The biggest issue faced by indigent prisoners upon their release in social integration. From the day of first trial to detention and release the family support plays a vital role. One of the various challenges faced by prisoners is critical reunification with their family which is due to the long term of prison. Employing the Serious and Violent Offender Re-entry Initiative (SVORI) dataset, a study was conducted that examined the relationship between mental health after release from incarceration and familial support both during and after prison.[21] The outcome revealed that familial support during incarceration does not significantly impact mental health outcomes. However, post-release familial support demonstrates a positive association with mental well-being. Conversely, an increase in negative familial support following release correlates with poorer mental health post-incarceration. The findings underscored the importance of policies aimed at fostering supportive familial environments to enhance the reintegration and mental health of formerly incarcerated individuals. The mental health of incarcerated individuals is highly affected and lead them in long mental trauma, loneliness and stigma. Social support provided by family members to returning prisoners is crucial, particularly in Indian society where urban areas often harbour misconceptions due to prevalent illiteracy. These misunderstandings lead to biased perceptions that incarcerated individuals lack moral integrity and dignity. This perception exacerbates the injustices faced by marginalized people within society. In their article titled “Family Support in the Prisoner Re-entry Process,” La Vigne and her co-author delve into the influence of family engagement during the rehabilitation of former inmates. The study focused on 413 male prisoners reintegrating into Baltimore and Chicago. [22] Through pre- and post-release interviews and surveys conducted over a span of two to three months, the researchers juxtaposed participants’ anticipations and realities concerning their reintegration journey. Results unveiled a profound dependency of participants on family members for financial aid and emotional solace. Nevertheless, the data highlighted a discrepancy between anticipated and actual levels of familial assistance provided. Overall, participants underscored the pivotal role of family in facilitating post-release adjustment, emphasizing its paramount importance in the re-entry process. When incarcerated prisoners face the backlashing attitude of society, they are unable to reunite and maintain a healthy relationship even if they have to go against their will to correlate again with society. During the term of prison, it is very necessary for the family, especially the closest members to visit them in jail in timely manner, this measure would diminish the probability of recidivism and breaches of parole following release, while augmenting the resilience of the social support framework. Researchers have frequently noted that individuals unjustly convicted experience comparable outcomes to those of other ex-prisoners upon their release, encompassing psychological distress, persistent mental health challenges, and societal stigmatization. Friedrich Nietzsche astutely posited that “in family life, love is the oil that eases friction, the cement that binds closer together”[23]. Thus, friends and family members can significantly aid in the reintegration of incarcerated individuals back into society, and the music that brings harmony’, therefore friends and family can play vital role in renavigation of the incarcerated prisoner with the society. A prisoners re-entry process can be difficult depending upon various factors such as his term of prison, the mental situation and environment faced by him in the prison, attitude of inmates etc. Concluding things, I believe that if a person has done a crime and has been sentenced to jail it is not apt behaviour to boycott, their poor family might have been facing a lot of criticism and backlash, we should rather support the poor indigent prisoners and give them their basic right to live with dignity. Conclusion Access to justice in India, particularly for marginalized and economically disadvantaged groups, remains a critical issue. Despite constitutional guarantees and legal frameworks, systemic inefficiencies and judicial reluctance often hinder timely justice. Reforms such as The Support to Poor Prisoners Scheme and provisions in the Bhartiya Nagarik Suraksha Sanhita 2023 are steps in the right direction. However, effective implementation and continuous evaluation are essential. The judiciary must ensure that every individual, regardless of economic status, receives fair and timely justice. Strengthening family support systems and community integration efforts will further aid in the reintegration of released prisoners, contributing to a more just and equitable society. The after-prison life, is drastic in its own, lack of employment opportunities, housing issues and education are various other kind of imprisonment life gives to the poor indigent after incarceration. Ensuring that justice is accessible to all is fundamental to upholding the democratic values and dignity of every citizen. At last, to conclude I would say the rights of every individual matter whether a high official or an indigent prisoner, their mental wellbeing needs to be seriously looked at, they have no right to be placed in disguise conditions. For instance, Each and every life matters! [2] Laura Valentini, *Justice, Democracy and Justice*, Univ. of Oxford, Dep’t of Pol. & Int’l Relations (2012), https://www.politics.ox.ac.uk/sites/default/files/inline-files/SJ012_Valentini_Justice%26Democracy.pdf. [3] Anita Kushwaha v. Pushap Sudan MANU/SC/0797/ 2016 [4] Right to Justice: Its Interference with Rights and Duties, Manupatra, https://articles.manupatra.com/article-details/Right-to-Justice-Its-Interference-with-Rights-and-Duties (last visited June 10, 2024).6 [5] Virginia Association of Attorneys for Justice, Equal Justice Under Law: The Most Inspiring Ideal of Our Society (2019), https://vaatj.org/wp-content/uploads/2019/12/Equal-Justice-Under-Law-The-Most-Inspiring-Ideal-of-Our-Society.pdf. [6] NLIU Law Review, Vol. VI, Issue II (2021), https://nliulawreview.nliu.ac.in/wp-content/uploads/2021/11/Volume-VI-Issue-II.pdf. [7] https://www.factchecker.in/explained/explained-why-supreme-court-calls-for-a-separate-bail-law-826657 [8] https://www.civilsdaily.com/news/page/8/ (last visited June 15, 2024). [9]Commonwealth Human Rights Initiative, Undertrial Prisoners and the Criminal Justice System (2016), https://www.humanrightsinitiative.org/download/1457162682Undertrial%20Prisoners%20and%20the%20Criminal%20Justice%20System.pdf. [10] Gudikanti Narasimhulu v. public prosecutor AIR 1978 SC 429 [11] § 436, The Code of Criminal Procedure, 1973 [12] § 167, The Code of Criminal Procedure, 1973 [13] § 437(7), The Code of Criminal Procedure, 1973 [14] https://theproofofguilt.blogspot.com/2020/09/ (last visited June 11, 2024). [15] CNN, Texas man exonerated after 27 years in prison, February 5, 2009, https://edition.cnn.com/2009/CRIME/02/05/texas.exoneration/index.html. [16] To cite the document from the Ministry of Home Affairs in the 20th edition of the Bluebook format, you would format it as follows: Ministry of Home Affairs, Government of India, *Support to Poor Prisoners Scheme* (May 2023), https://www.mha.gov.in/sites/default/files/poorprisoners_20022024.pdf. [17] M.H. Hoskot v. The State of Maharashtra [1978] AIR 1548 [18] https://nalsa.gov.in/ [19]Ashutosh Sharma, Long forgotten: India’s pretrial and undertrial prisoners, Frontline (Dec. 14, 2022), https://frontline.thehindu.com/social-issues/indian-jails-are-overcrowded-with-pretrial-and-undertrial-prisoners-from-poor-and-marginalised-communities/article66234747.ece. [20] ibid [21] Wallace, D., Fahmy, C., Cotton, L., Jimmons, C., McKay, R., Stoffer, S., & Syed, S. (2016). Examining the Role of Familial Support During Prison and After Release on Post-Incarceration Mental Health. International Journal of Offender Therapy and Comparative Criminology, 60(1), 3-20. https://doi.org/10.1177/0306624X14548023. [22] Family Support in the Prisoner Reentry Process – Crime & Justice Research Alliance, https://crimeandjusticeresearchalliance.org/rsrch/family-support-in-the-prisoner-reentry-process/. [23] https://www.goodnewsnetwork.org/quote-by-friedrich-nietzsche-on-family/ Post Views: 34 Related Criminal Law