As authorities misuse the criminal justice system, poor people languish in Nepal’s prisons for failing to furnish their bail.
Tufan Neupane: |CIJ, Nepal
The fundamental principle of law is that it is equal for all; it does not discriminate against anyone on the basis of caste, religion, gender and class. Any society that claims to uphold the rule of law should ensure that this principle translates into action.
Jang Bahadur Thakur, a resident of Aurahi Municipality-9 in Mahottari, has a different story to tell.
Thakur was arrested on January 24, 2021, for stealing a motorcycle belonging to Sobindra Chaudhary of Aurahi-1. After Thakur spent 18 days in custody, District Judge Mukesh Upadhyay ordered Thakur’s release on a bail of Rs1.25 lakh. Thakur, however, was sent to Jaleshwar Prison.
Mother Sanjadevi gets upset when she tells about her son Jang Bahadur Thakur who is in Jaleshwar Jail in Mahottari for not being able to pay the bail. photos: Deepak kc, Kantipur
Normally, in cases against individuals, a judge decides whether an accused is to be kept in custody until a final verdict is made. As per the National Penal (Code) Act, 2017 (Clauses 67-69), the judge has three options: keep the accused in custody, release the accused on bail, or release without bail on release for a regular hearing. In Thakur’s case, the judge ordered a release on bail as he did not consider it prudent to keep Thakur in custody until a final verdict. However, the judge’s prudence gave way when Thakur could not pay for his bail and was sent to custody again.
The difficulty of being poor
Jung Bahadur Thakur’s incarceration has become a bane for his family. His mother, Sajja Devi, has found it hard to care for his 23-year-old wife Nehasa Devi, and their three children. Junga’s younger brother, who left for Punjab in India in search of work, has been missing for five years, and his father, Ramji, who left home ten months ago to become a sanyasi, has not returned home.
“I don’t have any money to pay for the bail,” Sajja Devi told CIJ Nepal, “Lenders are already asking me to repay the previous loan. Where shall I go, and whom shall I tell my ordeal?”
All Sajja Devi has in the name of wealth is a hut built on unregistered land.
“The man who filed a case against my son promised to get my son released if I paid him Rs40,000. I took a loan from my relatives and paid him the money, but the man has been on the run ever since,” she said. “My daughter-in-law’s family is poor. Her father is dead already. We have no lawyer to fight our case.”
Thakur was on February 11 sent to custody “for failing to pay his bail”. However, four months after sending Thakur to custody, the District Court has yet to do any hearing on the case.
Who will compensate for the torture and harassment Thakur has faced all these months if he is declared innocent
in the end?
The story of Ravi Karki, who has been incarcerated in Jaleshwar Prison since September 8, 2021, for failing to pay a bail amount of Rs1 lakh in a case of ‘unruly behaviour’, is no different. The Constitution of Nepal has mandated that the cases that attract punishment of less than a year should be dealt with by para-judicial institutions such as the District Administration Office.
Having been incarcerated for nine months, Karki has spent as much time as he would if found guilty.
Similar is the story of Arjun Kumar Mukhiya, who has spent four months in Jaleshwar Prison. The Mahottari District Court asked him to furnish a bail of Rs50,000 on the charge of stealing a motorcycle. “Arjun Kumar Mukhiya, the dependent, has been sent to custody as per Clause 80 of the National Penal (Code) Act, 2017,” the letter ordering Mukhiya’s incarceration reads.
The Jaleshwar Prison, which can house 200 inmates, has been housing 600 inmates at the moment. Of them, 400 are those who await trial or final verdict in their cases, including the 48 who remain incarcerated for failing to furnish the bail.
“The prison has run out of capacity. The problem is that the inmates have been sent to custody even before a final verdict,” said Ashok Kumar Kshetry Yadav, jailer at the Jaleshwar Prison. “I even requested the district judge not to send more inmates for custody, but it has fallen on deaf ears. If the 48 inmates had been able to pay the bail, they wouldn’t be here.”
Prison for the poor
The situation in Birgunj Prison in Parsa District is no different. More than half of the 1,355 inmates (707) are those who await trial. According to jailer Krishna Gaire, 45 inmates remain incarcerated for failing to furnish the bail. So much so that 20 inmates remain incarcerated for months for failing to pay ten thousand rupees.
One such inmate is Sandesh KC, a resident of Nijgadh Municipality-1 in Bara district. He has remained in custody for failing to furnish the bail after he was arrested on April 25 for stealing junk. (See letter).
Binod Lama, 20, a resident of Birgunj Municipality-15, who was arrested for ‘disturbing peace’ on the day of Mahashivaratri, has remained incarcerated for more than three months for failing to pay Rs50,000 in bail. Speaking with CIJ, Lama said he had just been taking the side of his friend Niraj Singh, who was the one fighting. While Singh was released within three days after paying the bail amount, Lama remains in custody. (See letter by District Administration Office).
Lama’s parents work in India, and he lived with his brother and sister-in-law in rented accommodation. His brother works as a bus conductor. His sister-in-law, Urmila, said the family’s financial situation is so dire that it cannot purchase food to eat, let alone pay for the bail.
Bijay Sahani, 20, a resident of Simara-7, was arrested by police for ‘stealing’ a mobile phone. The police could not gather enough evidence to file a case against him, so this should be enough ground for releasing him. However, the police filed a case of ‘unruly behaviour’. On January 21, the District Administrator Officer of Bara asked him to pay Rs5,000, which he could not pay and was sent to custody. (See letter).
“Our son has been in jail for the past five months for failing to pay Rs5,000 in bail,” said Bhutai, Sahani’s father.
In criminal cases against individuals, judges or other officials looking into the cases (including chief district officers) should send the accused to custody or release them on bail or hearing date. While giving such an order, custody is considered an exception and bail is the norm. This means that the accused should normally not be sent to custody.
According to Nepal’s law, it is illegal to incarcerate the accused in cases in which the punishment is less than three years. In such cases, the accused is entitled to be released on bail. However, the stories told above show that the provision related to bail has become a means to send the accused to custody.
According to Sunil Pokharel, former secretary-general of Nepal Bar Association, this results from irresponsibility on the part of the judges. “Ordering for a release on bail means that the accused does not need to remain in custody. So the judge should not ask for an amount that becomes the reason to send the accused to custody,” he said.
The law and the mindset
An established norm in the criminal justice system is that the accused is innocent until proven guilty. The Constitution of Nepal has ensured this norm under individual rights (Article 20.6). The National Criminal (Code) Act (2017) has included this issue under the heading “General Rules of Criminal Justice”. This means that the concept has been accepted equally in Nepal. However, it is only the resourceful people who benefit from the rule.
Of the 25,000 people incarcerated in Nepal’s prisons, 40 percent are those who await a final verdict on their cases. They are in custody for two reasons. One, the courts have ordered them to be kept in custody until a final ruling because they may cause threats to public peace and security, misuse power, or leave the country. Second, even those who do not pose such threats are in custody for failing to pay the bail even if the courts ask them to be released.
Jang Bahadur Thakur’s wife Nehasadevi and mother Sanjadevi who are in Jaleshwar Jail of Mahottari after failing to post bail.
There is no data on how many people across the country remain in custody for failing to pay their bail. The Department of Prison Management told CIJ they had not kept any such record. However, the records of Jaleshwar and Birgunj prisons show that 8 percent of the people in custody are those who have failed to pay their bail. This could mean that more than 1,000 people in the country remain in custody for being poor.
So much so that even the public prosecutors who file cases against the accused point out the flaws in the system. For instance, Deputy Solicitor General Padam Prasad Pandey said the problem continues to occur because of a failure of judgement among judges. “Many people are forced to remain in jail for just being poor. This cannot be considered normal,” Pandey said. “Had the judges asked for a bail amount while considering the financial status of the accused, this problem would not have occurred.”
Clause 72 of the National Penal (Code) Act, 2017, provides that the bail asked should be based on the nature and intensity of the crime, the familial and economic background of the accused, and the consequences of the crime. However, this has not been translated into action, said Hrishikesh Wagle, dean of the School of Law at Kathmandu University. “Incarcerating an accused even when a judge has ordered against it goes against the objective of the order.” According to Wagle, judges should be careful about the accused’s financial status when it comes to asking for a bail amount. “They should be careful if their order becomes a tool for further incarceration of the accused and ask for the bail amount accordingly.”
The concept of the bail amount is considered to have begun in England. The magistrates would release the accused on bail to ensure that the accused would return during the hearing. The bail amount would be confiscated if the accused did not return to court. In 1689, “The English Bill Of Rights” changed the provision of asking for excessive bail amounts and sending the accused to custody and ensured that “the bail amount cannot be more than what the accused can pay”.
In 1791, the eighth amendment of the American constitution included a similar provision. The Supreme Court of Nepal has also made attempts at a revision through several orders, but that has hardly translated into action. The provision that ensures that the individuals who fit the criteria are released on bail has become a tool for further incarceration. When the accused spend unnecessary time in jail, they lose their income, stay away from family, lose family members and face economic and social consequences.
The constitution considers the right to equality as a fundamental right. According to Article 18, “All citizens are equal before the law, and no one should be deprived of equal protection by the law.” “How is it protection of the law if an individual is sent to custody? It is not judicious to ask for a bail amount for petty crimes.”
Judges are primarily responsible for this situation to occur. In informal conversations, the judges say they do not have information about the accused’s financial status since there is no system for keeping such records. According to a district judge, “We are unaware of the financial status of each accused. The general practice is to ask for a bail amount based on the intensity of the crime and the damage if it has been assessed.”
However, Sanjeev Raj Regmi, spokesperson at the Office of the Solicitor General, said the judges should assess the accused’s financial status during the hearing. “The idea of asking for a bail amount is to ensure that the accused returns to the court when called and supports the justice process. So judges should not ask for an amount that keeps the accused in custody.”
Clause 137 of National Criminal (Code) Act 2017 provides that if a lower court gives a punishment of fewer than ten years, the accused can pay Rs1.09 per year (Rs300 per day) to be exempted from staying in prison. Similarly, Dafa 155 provides that if the accused is declared guilty for the first time and the punishment is less than a year, they can pay Rs300 per day and be exempted from staying in prison. However, those who cannot pay the bail amount cannot use this provision.
The Karyabidhi Samhita also provides that in cases of individuals who are sent to prison for failing to pay their bail, the case should be finalised within six months. If it is not finalised, the accused should be released on a hearing date. However, this provision does not apply to everyone. For instance, in the banking crime case, the Patan High Court had allowed Shankar Mijar to go for an appeal only after he spent a year and a half in prison after he could not pay Rs6 million and ten days in jail. When a writ was filed at the Supreme Court on this case, the bench of Ishwar Khatiwada and Manoj Kumar Sharma ordered him to be released on a hearing date, as the case had not been finalised within six months. This shows that there is a need to wait for the top court’s order even for a legal provision to be translated into action.
Supreme Court spokesperson Bimal Paudel claims that Nepal’s courts are increasingly becoming progressive regarding facilities given to the accused. “The financial status has become a cause for sending many people to prison. The law cannot be unequal for the rich and the poor,” Paudel said, “Reform begins when judges ask for a bail fee that the accused can pay. Similarly, they won’t have to stay in prison for long if the final judgement comes in time.”
Injustice against children
The reason why the law protects children is that they cannot safeguard themselves. This is why the illegal actions of children are called ‘conflict with law’. However, in Nepal, there is a practice of seeking bail amounts for children and sending them to prison if they cannot pay.
Nepal’s law considers individuals under the age of 18 as underage. They are sent to a reform house if found to be involved in a crime. There are reform houses in Biratnagar, Birgunj, Makwanpur, Bhaktapur, Pokhara, Bhairahawa, Nepalgunj and Doti. The “Public Defender Society of Nepal” and the “International Legal Foundation” had in December 2021 released a survey report that showed that out of 917 children in the reform houses, 62 were those who could not pay the bail amount. A report titled “Critical Insights on the State of Juvenile Justice in Nepal” said, “Justices are seen to make decisions thinking that parents pay for the bail of children. However, it is only the rich parents who pay for the bail of their children, while the children of poor parents have to spend additional time in prison for failing to pay for the bail. This practice conflicts with the rights related to the protection of equal rights.”
Let us look at another instance. ‘Baidam 1’ was arrested by the police on charges of theft of a scooter on Paush 26, 2076, and a case was filed at the district court after keeping them in custody for 18 days. On Bhadra 30, 2077, the district court ordered them to be sent to prison for a year and pay Rs41,600 in fine. The letter released to send them to the children’s reform house in Sarangkot said that the convict should be sent to prison for an additional period if they failed to pay the fine. The parents of the convict, who sustained on daily wage, could not pay the fine. They even filed a writ at the court asking it to review the decision to incarcerate the convict for failing to pay the fine. But their request fell on deaf ears.
The situation became so painful that ‘Baidam 1’, who was 15 years and six months old, tried to commit suicide several times in the reform house. An NGO named Sarajanik Pratirakshak Samaj Nepal submitted a habeas corpus writ at the Supreme Court on May 7, 2021. In the Act related to children, there is no rule of punishing children below 16 years except for serious and repeated offences. The Muluki Faujdari Samhita considers crimes that attract a jail time between 3 to ten years as serious and crimes that attract jail time of more than those many years as heinous. The crime committed by ‘Baidam 1’ attracted a jail time of less than one year, so it was not serious. The bench of Supreme Court justices Meera Khadka and Kumar Chudal on May 16 ordered ‘Baidam 6’ to be released and handed over to their family.
There are many other instances of insensitivity towards children. The Surkhet District Court ordered ‘Tikaram’ (name changed) to stay in jail for nine months and pay a fine of Rs69,975 when he was accused of stealing a gold chain. And he was jailed when he failed to pay. A case was filed in the Supreme Court, claiming that his parents, who are daily wage labourers, could not pay such a high bail fee and that incarcerating someone for failing to pay the fine was illegal. In the case, the top court ordered: “The children who get financial support and protection from family do not need to face jail time, whereas the children who do not get such support and protection face jail time. This does not seem suitable from the perspectives of society and equal law.”
The bench of then Chief Justice Cholendra Shumsher Rana and Justice Ishwar Khatiwad said, “Even when we look at it from the perspective of the wellbeing of children, it seems unreasonable to keep them in custody for failing to pay the bail.”
“It is necessary to start forming a law that ensures that children do not have to remain in custody for failing to pay the bail,” the order further said.
However, even after the Supreme Court’s order, there do not seem to be any reform attempts.
