After the National Legal Services Authority told the Supreme Court that as of end of 2022, a total of 5,029 undertrials were in jails across the country despite being granted bail, a two-judge bench earlier this week issued seven guidelines to address the matter.

The order was made available on public domain on Thursday.

The National Legal Services Authority provided the data after the Supreme Court on November 29 directed states to furnish information on undertrials who were in jail as they are unable to meet bail conditions. The states were asked to provide the data to the National Legal Services Authority, which in turn was directed to suggest ways to deal with the matter and provide legal assistance wherever necessary.

In response to the court order, state legal services authorities initially submitted data to NALSA on the number of such prisoners at the end of December. Subsequently, they were asked to submit progress reports on legal assistance and release of the undertrial prisoners.

What are the SC guidelines?

In its directions, the Supreme Court said that the jail superintendent needs to give all undertrial prisoners a copy of the bail order by e-mail either on the day when the judgement is passed or the next day.

“The jail superintendent would be required to enter the date of grant of bail in the e-prisons software [or any other software which is being used by the Prison 10 Department],” the Supreme Court said.

In case the undertrials are not released within seven days of getting bail, the jail superintendent has to inform the secretary of the District Legal Service Authority. The secretary “may depute para legal volunteer or jail visiting advocate to interact with the prisoner and assist the prisoner in all ways possible for his release”, the court said.

The court said that the National Prison Portal, which has data for 1,300 jails across the country, has been working to keep track of the dates of bail and release of undertrials. If undertrials are not allowed to walk out of prison in seven days, then a provision can be made to send an email by default to the secretary of the District Legal Service Authority.

The judges stated that the secretary could prepare a report on the socio-economic conditions of the inmate, and place it before the concerned court to relax the bail conditions.

In its report, the National Legal Services Authority noted that one of the biggest hurdles in undertrials walking out was due to the prisoners being accused in multiple cases and they were not willing to furnish bail until they were given bail in all cases.

Other reasons for undertrials not getting released despite bail included family members unwilling to furnish bail bonds, the accused not having cash or being unable to furnish sureties to the satisfaction of the court.

The Supreme Court, therefore, suggested that courts could consider granting temporary bail for a specified period to the inmate so that the person can furnish bail bond or sureties once released.

“If the bail bonds are not furnished within one month from the date of grant bail, the concerned court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation,” the judges said.

Lastly, the Supreme Court said that in cases where local surety conditions are leading to a delay in the undertrial being released, the courts should not pass such orders.

NALSA report

Data from the progress reports showed that 2,357 prisoners were provided legal assistance, and 1,147 of them have now been released.

At the end of December, Maharashtra had 703 persons who were in jail due to their inability to fulfil bail conditions, the data from NALSA showed. Of these, 215 were provided legal assistance and 314 were released, the National Legal Services Authority said.

In Delhi, the number of such prisoners was 287, out of whom 217 were provided legal assistance and 71 persons were released.

The legal services authority said that it is taking efforts to ensure that more undertrial prisoners can be released. “Wherever, the reason for non-release is due to inability to furnish bonds or surety, NALSA would be following up those cases with the respective SLSAs/DLSAs [State and District Legal Services Authorities] and hopefully in the next 1-2 months, more undertrial prisoners would be able to get out of prison,” the report said.

The National Legal Services Authority told the court that a standard operating procedure has been prepared by the National Informatics Centre, or NIC, which also deals with this aspect.