Clinical Legal Education @ NLUD: plea bargaining and getting bail at Tihar Jail

My experience at Tihar jail – this article was written by Shweta Kabra of NLU, Delhi.

Tihar Jail

Tihar Jail

 

Around twenty volunteers along with the Legal Aid Committee of our college undertook two projects in the Tihar jail, the Plea bargaining project and the implementation of the right to bail. The work involved visiting Tihar for interviewing the inmates and identifying under trial prisoners who are eligible for the above.

In the beginning, we were trained extensively on the provisions of plea bargaining and bail in the Code of Criminal Procedure, on the process involved in both and on how to conduct ourselves while taking the interview. One has to be really careful and sensitive while conducting these interviews. We were specifically told that we were interviewing them solely for the purpose of providing them with access to their rights, and not to pass judgments on whether they have committed the crime or not or if they are speaking the truth or not.

The plea bargaining project was undertaken to ensure that those under trials who have been incarcerated for a substantive time period, and fulfil certain conditions are allowed to plead guilty and thereby be released, upon conviction with little or no punishment, for the period that has already been undergone by them. This project involved interviewing the under trials and taking their informed consent to Plea Bargain, procuring the case files, and submitting these to the court authorities. Tihar jail holds a special court for such cases every month so as to reduce the huge number of under trials in the jails.

We properly explained the concept and procedure involved in plea bargaining before taking their consent. We were instructed to not only focus on the pros, that is, the release without any punishment, but also to let them know the cons. There are various negative aspects of pleading guilty. Firstly, the court convicts the prisoner without him getting an opportunity to defend himself. This status of conviction conferred upon them can prove to be detrimental if they are convicted the second time for the same offence. The law awards higher punishment for habitual offenders. Secondly, their names come into the police files and the police might round them up unnecessarily for another crime. Thirdly, they might find it difficult to find government jobs and to pursue education in government schools and colleges. Lastly, there is always a social stigma attached to a criminal in the society. However, while doing the project, we realized that there are certain inherent problems with plea bargaining. Most of the prisoners, naturally, due to lack of legal representation and the cumbersome trial process, are lured by the incentive of release without any punishment. This drives them to accept their fault and plead guilty before the judges without taking into account the consequences of such an act.  Hence, one has to be really careful and sensitive while conducting interviews.

Going to Tihar jail and speaking to the under trials was an eye opener for me in various ways. We asked them about the conditions in the jail, the food they get the work they are expected to perform. Some of them told me that they have been studying in the Tihar. They have a library, a music room for recreation and have competitions and activities they can take part in regularly. However, a few of them were very unhappy with the conditions in Tihar especially the women under trials in Jail no. 6. As we entered the women’s jail, the under trials were overwhelmed to see us. Most of them began weeping furiously and begged us to take them out of prison. They informed us that we were one of the few people to ever visit them. We were also informed that in most cases, their families have left them and they have no support. Very few lawyers visit the women’s prison, and the jail authorities are reluctant to let NGOs and legal aid people enter the women’s prison for the reason that ‘women cannot take decisions on their own. They have to ask their family members. So it is of no use.’

The under trials pleaded us to go out and do something about the filthy conditions they live in. They urged us to taste the ‘paani wali dal’ and the stale rice they get for food. Despite the D.K Basu guidelines hanging on the walls of every prison in ‘English’, one woman wanted me to go out and inform her brother that she was in jail. She said that her family or friends had no idea where she has been the past one month.

While conducting the interviews, we found that most of them had legal representation by the Delhi Legal Services Authority. However, the lawyers seldom visited them. They met the lawyers only during their hearing in court.

Along with the plea bargaining project, we undertook the bail project simultaneously. There were two groups in this project: One, which interviewed and identified the under-trials eligible for the above and the other group, which moved applications for bail in the court. My work was limited to the former. We segregated cases where bail could be granted under S. 436, i.e. bailable offences and S. 436A, i.e. where the under trial has undergone more than one-half of the maximum punishment prescribed for the offence.

I was horrified when I found out that some of the under-trials had no idea why they were in jail. They did not know the Act, section or the offence they were charged under. There were instances where the under trials were granted bail, but were not released as they could not furnish the surety amount. In such cases, we drafted an application addressed to the judge of the court requesting him/her to reduce the amount of surety or to grant bail on a personal bond, as the under trial was not in a financial position to pay the required amount. We also came across cases where the judge denied bail previously due to the inability of the prisoner to pay the surety amount. Despite learning in our air conditioned classrooms that bail is a right in case of bailable offences, what we saw there was in stark contrast. Bail, I realized, is indeed a privilege that can only be afforded by the rich.

After taking their interviews and filling up the questionnaires that we were given, we went to the warrants section of the jail to verify the information and to fill in that information which few prisoners had no idea about. Finally, we maintained an online database regarding all the information we gathered and segregated those who could avail the benefit of this provision. The other group, then, prepared vakalat nama’s in consultation with a lawyer, or in the absence thereof, and argued the case on its own merits under relevant legal provisions before the District Courts.

 

This article was written by Shweta Kabra of NLU, Delhi.

About Ramanuj Mukherjee

Ramanuj Mukherjee is former corporate lawyer and an alumnus of National University of Juridical Sciences. He co-founded iPleaders, a startup that is making legal knowledge and education easily accessible to everyone. You can follow him here: https://twitter.com/law_ninja or connect with him here: in.linkedin.com/in/ramanujm

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