Women Under-Trials: An Empirical Probe into the Functioning of the Mechanism of Bail

By Sadiq, Shereen | International Journal of Criminal Justice Sciences, January-December 2011 | Go to article overview

Women Under-Trials: An Empirical Probe into the Functioning of the Mechanism of Bail


Sadiq, Shereen, International Journal of Criminal Justice Sciences


Introduction

Law is a formal instrument of social control, the purpose of which is to ensure all that is constitutionally guaranteed. In countries like India, which endeavours to bring about social transformation at a fast pace, a law is being employed not only as a means of social control but also as a lever of social change. Over the years it has experienced continuous rationalization and the spread of the ideals of individualism, freedom, equality, individual rights, social justice and social welfare. Furthermore, there is increasing rationalization of law in the administration of justice as well as in the legal rules. The rationalization of the legal rules has been brought about by the growth of systematic legislation in order to deal with the social problems of a developing industrial society (Bottomore, 1975).

Indian constitution in tune with international efforts provides certain basic principles to govern the criminal justice system. Of these, two principles, i.e. presumption of innocence and the concept of due process, are related to human dignity, life and liberty. The former refers to the principle that an individual is alleged to be innocent till the contrary is proved against him/her. The later refers that no person shall be deprived of his life and liberty except according to the procedure established by law. Both the principles are enshrined in Article 21 of the Indian Constitution (whose scope has been extended by interpretation by the Supreme Court) and in Article 14(2) and Article 9 of the International Covenant on Civil and Political Rights, 1966 (Joshi, 2006). These constitutional rights have been faithfully incorporated in our Criminal Procedure Code, 1973 as a mandatory procedure for the executive authorities in order to benefit the accused. However, much of the legislation seems to remain primarily symbolic or ritualistic. The effectiveness of law lies not in what it contains as statutory provision but what it does for the common man. It is doubtful whether it has been successful in reaching its objectives.

The criminal justice system in independent India demonstrates a paradigm shift from the presumption of innocence to presumption of guilt. It is unfortunate that in India despite the constitutional provision of presumption of innocence, more than 60% of the prison population is being held pre-trial i.e. custodial rather than punitive. This is an astonishingly high proportion, far higher than found in most other jurisdiction. Dostoyevsky aptly remarks, "The degree of civilization in a society can be judged by entering its prison" (Coyle, 2000). It is reported that in the beginning of 2010, around 3,58,000 people were lodged in jails against a sanctioned capacity of 2,45,000. Out of the total jail population of 3,58,000 prisoners, only 98,000 were convicted. Whereas 2,60,000 (73%) were under-trials. Such a situation is one of the many examples of ineffectiveness of law in India, which is brought about because of its inaccessibility by the masses.

Under trials though should be presumably innocent still continue to suffer the hardships of prison life. It causes the loss of most precious human possession viz. a viz. liberty. Overcrowding, corruption, violence, contact with hardened criminals, inhumane living conditions, abuse of power, disease (psychological and physical), and neglect are only a few of the salient features of prison. The chances of acquittal definitely become remote in the case of a person detained while facing trial. An under-trial prisoner is of little value to his lawyer during the preparation of his defence. He cannot look for witnesses or personally contact anyone who might be able to assist in his trial. In many cases an undertrial prisoner cannot earn money to employ a counsel and meet other expenses connected with his defence. As a result, under-trials languish in jail for an unspecified time period. Every passing moment strengthens their bitterness and disillusionment towards the system. …

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