The last time Farven Taj saw her 22-year-old son Mohammed Kasif was six months ago just before he was arrested by the Bengaluru police on charges of stealing a car. She receives a call every other day from the Bengaluru central prison where Kasif is allowed to talk to her for 5-10 minutes. In October 2023, Kasif called Farven with good news that he had received bail.
But five months later, Kasif continues to be in jail despite a bail order in his favour because he lacks the financial resources to furnish his bail bond. “They have asked for a sum of Rs 4000 but we don’t know how we can afford it. Kasif was the only one in the family who was earning and now he is inside (prison),” says Farven Taj.
The Karnataka Prison Department says that in February 2024, there are 88 prisoners like Kasif languishing in jail despite receiving bail because they are unable to furnish bail bonds. RTI responses from the prison department also show these prisoners are lodged in jails across the state with the highest in Bengaluru Urban and Chitradurga districts.
No mechanism for legal aid for prisoners
There are supposed to be mechanisms in place to help prisoners like Kasif address this problem. In January 2023, the Supreme Court issued directives which stated that if an accused person is not released within a week of getting bail, the jail superintendent should inform the district legal services authority, which should, in turn, depute para legal volunteers or lawyers to help the prisoner get released.
While minor offences often lead to a cash surety to secure bail, major offences could prompt the court to seek personal surety, a written promise, signed by a person who gives surety of the prisoner’s presence in the court when called upon, to pay a certain amount fixed by a court or police officer.
Arranging the money and a person who agrees to act as surety is a challenge for several of the prisoners languishing in jail in the state despite receiving bail. “We have tried asking the lawyer if there is any way that Kasif can receive support so that he can be released,” says Farven. “But there is only so much we can do. We have been trying to save up and give the money to the lawyer for his release,” says Farven.
This is a concern shared not only among prisoners but also jail superintendents in districts across Karnataka. “There is no recourse. We don’t know how we can help arrange the money for their release,” says DR Koni, superintendent of the taluk prison in Madhugiri in Tumakuru district. “We have three prisoners who received bail but are yet to furnish the bail bond,” Koni says.
Some of the undertrial prisoners spend years in jail despite securing a bail order. Ravi, a resident of Ullal in Mangaluru, has been lodged at the Madhugiri prison for ten years. Even though he secured a bail order, he continued to be in prison since he could not arrange personal surety or afford the Rs 1 lakh bail bond. “He’s spending his time doing pig rearing work in the prison. Due to the financial model of our bail system, he has had to continue to be in prison after securing bail,” says DR Koni.
Prison authorities say that they inform the District Legal Services Authority (DLSA) when they come across cases of prisoners remaining in jail despite securing bail orders. The DLSA is supposed to provide free legal aid to prisoners who cannot afford a lawyer. “But in most cases, there is no resolution and the prisoner remains in jail,” says Malini Krishnamoorthy, Director General, Prisons and Correctional Services, Karnataka. “We consistently come across cases in which families cut off contact with prisoners, particularly if they are women prisoners, since they consider them to be a financial burden,” says Malini. “It would also help decongest the prisons which are currently 6% over the capacity,” she adds.
Union Finance Minister Nirmala Sitharaman, while presenting the Budget for the year 2023-’24, announced that the government will provide financial support to “poor persons who are in prisons and unable to afford the penalty or the bail amount”. Measures like this would help reduce the amount of times prisoners spend behind bars because of their inability to fulfil bail conditions. But this requires new mechanisms of financial support for prisoners to be introduced and implementing them would require legal aid officers and volunteers who can identify inmates in need of assistance.
NGOs fill the gap in Maharashtra
This gap is filled by non-governmental organisations in some parts of the country. One of the organisations involved in this work is Prayas, a field action project of the Tata Institute of Social Sciences in Maharashtra. Last year, a detailed study by Prayas and the Fair Trial Fellowship Programme of National Law University, made the revelation that less than 8% of undertrials in jails in Maharashtra were able to access legal aid services between 2016 and 2019. Under-trials, the report finds, “end up spending more time than they should in prison”. It highlighted a lack of coordination between the different criminal justice institutions, including the police, the courts, the prison department and the legal service authority.
“We have heard about this initiative in Maharashtra and it is working because of social workers who are helping identify prisoners in need of legal aid and helping connect them to lawyers and NGOs. In Karnataka, there is no such coordinated effort to address the issue,” says Malini Krishnamoorthy. “We have written to the state government to form committees at the district level to address this but they are yet to be formed,” she says.
This reporting is made possible with support from Report for the World, an initiative of The GroundTruth Project.