Vasantha*, 65, pleads each time her family or lawyers come to meet her at Yerwada central prison in Maharashtra’s Pune. It’s been over two years since she got bail, but she is still in jail. And she isn’t the only one. 

Hundreds of undertrials are languishing in overcrowded prisons in Maharashtra, because just like Vasantha, they don’t have the money to fulfil their bail conditions. Even deputy chief minister Devendra Fadnavis had raised this issue at a home department meeting in September, saying that he had directed the authorities to find ways for their release. He tweeted that 1,641 such prisoners were behind bars despite bail.

Arrested in a drugs case in January 2020, Vasantha, who is from a family of daily wagers, got default bail six months later as the police failed to produce a chargesheet. However, a court added a bail condition of Rs 3 lakh solvent security – which requires the person assuring bail to present a solvency certificate based on the evaluation of their property. No friend or relative could furnish the same. 

“We tried for the modification of her bail to cash security and reduction in the amount but it was rejected. She is from a poor family and it’s not possible for them to arrange surety. The only option she is left with is the trial and it will take at least four to five years for her case to get on trial. Till then, she will be in jail if she doesn’t fulfil the bail condition,” said Amar Pawar, a legal fellow under Fair Trial fellowship, which works to provide legal representation to undertrial prisoners.

But even those granted bail based on cash security may not be able to get it.

Consider the example of Mangesh*, a 23-year-old labourer who was arrested for allegedly stealing an electric transformer in Pune in October last year. He was initially asked to submit a solvent surety of Rs 15,000, and that condition was modified to cash security two months after the arrest. But Mangesh continues to be in jail as his wife, who is also a landless labourer, could not furnish the amount, according to Pravin Gunjal, a social worker monitoring the case.

For many others, the condition of a local resident behind the bail surety becomes a hurdle.

Sohail*, a 32-year-old from UP’s Faizabad who came to Pune to learn how to repair air conditioners, was arrested in a trafficking case just two months after he arrived in the city in March. He was granted bail in October with the condition of solvent surety of Rs 50,000 by a local resident.

“We are not from Pune…he belongs to a family of landless labourers. His parents are running from pillar to post, requesting people if they can help…but nobody turns up. The annual income of the whole family is even short of the surety amount…His mother cries all the time….They don’t know anybody, how can we expect anyone to come forward to give surety…we don’t know for how long he has to be there,” said his relative Abdul Kalam*.

But what about those without a family?

Prabhakar*, a 68-year-old ragpicker from Beed, doesn’t have a family and was arrested in a POCSO Act case in March last year. He was granted bail in October last year but nobody came forward to fulfil the surety bond of Rs 30,000.

“He can be released only when the case comes on trial, which will take at least five to six years… he is losing his eyesight and is not getting proper medical assistance. He has become 70 to 80 percent blind. He keeps requesting for medical treatment but hasn't got any till now,” said Gunjal, another Fair Trial fellow.

Medha Deo, program director of Fair Trial Fellowship in Pune and Nagpur, said the current bail system is based on the assumption that every person either has property or social connections to be able to comply with the conditions. “People from marginalised socioeconomic backgrounds often bear the brunt of such assumptions.To able to think of solutions for addressing this problem, we first need to have an accurate assessment of how many people are in prison only because of their inability to comply with bail conditions. There is unfortunately no official data on this.”

Jail despite bail is not just a problem in Maharashtra. Last year, then Supreme Court judge Justice DY Chandrachud had termed the delay in communicating bail orders to jail a “very serious deficiency” which needs to be tackled as it “touches upon the human liberty” of a prisoner. It came months after the top court took suo motu cognisance of the delay in the release of 13 prisoners despite bail in UP’s Agra. The court had in September last year approved a system to allow electronic transmission of copies of court orders to prison authorities.

According to the national crime records bureau, there were 4,27,165 undertrial prisoners across India last year.

Sunil Dhamal, Maharashtra DIG of prisons, said there is “no exact figure” for Maharashtra. “Figures of such prisoners keep changing…We have a memorandum of understanding with TISS and other organisations which provide legal aid. Some people face the problem of solvent surety and cash surety. Government doesn’t involve directly because if the government itself helps in the felicitation of bail of accused then it will not go as a good message. But yes, we have included third parties to provide help to such prisoners, and after this issue was raised by the deputy chief minister, we have expedited the work process.”

*People in this report did not want to be named to avoid any influence on their cases.