Lawyers associated with a non-profit are using a little-known legal option harking back to the Salem witch trials to free accused languishing in jails
Dard Se Humdard Tak currently works with prisoners in four cities. Pic/Pradeep Dhivar
A group of around 20 lawyers in Maharashtra has, for the last two and a half years, been patiently working towards reducing the pendency of cases in the state’s courts. They have their eyes set an additional goal: to decrease the overcrowding in prisons by using a little known legal hack with its origins in dark history.
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The practice of plea bargaining was first introduced in the Indian legal system in the form of the Criminal Law (Amendment) Act of 2005, and was legally enforced in the country in July 2006. Under this provision, an accused arrested in a an offence punishable by seven years of imprisonment or less can plead guilty to the charges and be released after a reduced sentence, often the time already served.
While the concept remains little known, even fewer know of its origins. The legal fraternity believes that the first documented instance of plea bargaining was recorded in New England in the 1600s during the Salem witch trials. Women accused of being endowed with evil, magical powers, were given the choice to confess and stay alive, or stick to their guns and be burned. Dard Se Humdard Tak, a community of lawyers that offers a wide range of pro bono services for prisoners, has been educating prisoners in Mumbai, Thane, Nashik and Pune about plea bargaining.
Advocate Prakash Salsingikar, who leads the non-profit in Maharashtra, says the effort kicked off in 2020; now, a session is held once every 15 days. “Byculla and Thane jails have a particularly high number of prisoners who, after learning about the option, wish to plead guilty instead of enduring a long-drawn court battle. Only those arrested for petty offences such as theft, preparation for robbery and minor assault can opt for this, and only if they have not been convicted for an offence earlier,” says Salsingikar.
The result, he adds, is that the government’s expense of taking care of a surging population of prisoners is curtailed, the prisons stand the chance to be less crowded and the disposal rate of courts improves. During the Legislative Council session in March, Deputy Chief Minister Devendra Fadnavis had stated that Maharashtra has 60 prisons, with a total capacity to hold 24,722 inmates. However, currently the prisons hold 41,075 inmates, with the Mumbai, Thane, Yerawada and Nagpur jails holding prisoners beyond their capacity. Once the plea bargain is approved, the accused has to pay a nominal fine or serve 10 to 15 days more. In numerous cases, the accused is unable to even afford a fine of Rs 100. The non-profit intervenes in this case.
“In a recent case, the accused was asked to pay Rs 100 or serve an additional 15 days. We approached the court two days later, offering to pay the fine, but the court said that once the additional sentence has kicked in, it had to be served in full. We went back to the law books and found a provision in the Code of Criminal Procedure, which allows a part of the fine to be waived off in exchange for the number of days served. We paid R80 and the accused walked out of prison the same day.” he recalls.
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