Editorial: Criminalising poverty, justice
The stark, disturbing fact that they are behind bars because of systemic failures was once again reiterated recently by Supreme Court Justice Vikram Nath while releasing a report by NALSAR University of Law.
Nothing can be more damning than the fact that over 70% of prisoners in Indian jails are undertrials, and they are languishing in prisons not because courts convict them but because they belong to the disadvantaged sections of a society that punishes poverty. The stark, disturbing fact that they are behind bars because of systemic failures was once again reiterated recently by Supreme Court Justice Vikram Nath while releasing a report by NALSAR University of Law. Grave injustice is being perpetrated when people are incarcerated beyond the period of the maximum sentence if convicted. Equally unjust is the prolonged imprisonment of people accused of bailable offences simply because they cannot furnish bail. This is another instance of criminalising poverty.
Inequities and inequalities of various hues and shades come into play in a flawed criminal justice system, which further victimises people who already suffer from vulnerabilities. These sections of people include women, persons with mental illnesses, and, of course, those belonging to marginalised communities. This is not just limited to India and other developing countries. Even in advanced countries like the US, vulnerable people are disproportionately represented in prisons, which mirrors inequality in society. Due to systemic deficiencies and nonfeasance, many are unable to break the cycle of incarceration.
Some reports indicate that the legal aid system has not been as effective as intended due to the absence of an integrated and unified system linking legal aid, courts, and prisons. This problem relating to lack of coordinated effort was to some extent addressed recently by the apex court, which has framed a unique and remarkable standard operating procedure wherein bail amount of poor undertrial prisoners will be paid by State Governments through District Legal Services Authority (DLSA). Further, a district-level empowered committee would be constituted, comprising nominees of bureaucrats, police, prison, and law officers will have the powers to direct the release of funds for surety on the recommendation of DLSA. On paper, it does sound like a radical measure, but it needs to be seen how it would pan out in practice.
Other problems plaguing legal aid include low and delayed payments, inability to attract top talent, and persistence of subtle prejudice and discrimination in courts against DLSA lawyers compared to private lawyers. Ensuring better pay, continued professional training, and capacity building in criminal law, along with an effective system of monitoring and evaluation that holds them accountable, could bring about desired change.
Only a lawyer committed and passionate about fighting for justice for the poor and disadvantaged can do a good job, and DLSA needs to attract such talent. To instil a sense of passion and idealism, law colleges should give priority and due importance to legal aid clinics so that students understand their significance and are inspired to opt for the DLSA. It offers invaluable practical experience, which is critical for career growth later, to compensate for inadequate financial rewards. Making it mandatory may not be effective, but instilling a sense of public service and altruistic values in law colleges could make talented students volunteer for legal aid work or offer pro bono services in private practice. Ideally, one should not only build a lucrative career but also do altruistic and selfless work whenever possible. Reforms need to go beyond procedural fixes to a fundamental reorientation of the prison system to be more rehabilitative and
less retributive.
