In a recent landmark order in Bhim Singh vs Union of India, the Supreme Court directed the fast-tracking of criminal cases, and the release of undertrial prisoners who had completed at least half their maximum prison term pursuant to Section 436A of the Code of Criminal Procedure (CrPC). Bringing attention to the plight of those languishing in prison while awaiting trial, the court’s order coincides with the Narendra Modi government’s mandate to decongest prisons by releasing undertrials.
While laudable, these measures reiterate previous judicial directives (SC Legal Aid Committee vs UoI; Rama Murthy vs State of Karnataka) and Law Commission reports (78th and 239th). Releasing undertrials is a short-term solution; as explained below, it does not address the underlying causes for the high proportion of undertrials in India.
Pre-trial detention is a real problem. More than 66 per cent of India’s prisoners are undertrials, which is over twice the global average of 32 per cent. Of these 2,54,857 undertrials, more than 2,000 have been in prison for over five years. Overburdened by the flood of arrestees (nearly 75 lakh were arrested in 2012, according to the National Crime Records Bureau), prisons have experienced an increase in the number of undertrials and overcrowding. The average occupancy rate in India’s prisons is 112.2 per cent, with the situation particularly dire in states such as Chhattisgarh (252.6 per cent) and Delhi (193.8 per cent).
Unfortunately, reforms have favoured measurable quick fixes — fast-track courts and greater judge-population/ police-population ratios — without attempting to understand the high incidence of pre-trial detention. This can be explained by, first, criminal justice functionaries (police, prosecutors, judges and prison officials), who are often overworked, understaffed and underpaid; second, the socio-economic profile of the undertrials, which affects their ability to post bail; and finally, an ineffective legal aid system.
First, India has one of the lowest police-population ratios, of 131.1 officers per 1,00,000 population (against the UN norms of 222).
Corruption is also an endemic problem; in 2013, Transparency International found that 62 per cent people reported paying bribes during their interactions with the police. Misaligned incentives to arrest persons (for example, to demonstrate the progress of investigations) have resulted in 60 per cent of all arrests being “unnecessary or unjustified”.
Prosecutors lack basic facilities, such as access to legal databases, research and administrative assistants. The Delhi High Court, in a March 2014 order, noted that prosecutors’ laptop allowances exclude payment for internet facilities and legal databases; they do not have exclusive office space in courts and lose files because of insufficient file space. As the court observed, “one of the predominant cause(s) for delay in disposal of criminal case is due to shortage of public prosecutors.”
India has around 15 judges per million population, despite the 2002 Supreme Court order, in All India Judges’ Association, directing an increase to 50 judges per million by 2007. But the bigger problem is the backlog of more than three crore cases, with the SC itself currently hearing 64,000 cases. Delays in the conclusion of trials often result in pre-trial detention being used a punitive measure, causing denial of bail. They also spawn informal justice measures, such as plea-bargaining or jail adalats, where fewer procedural safeguards nudge the accused to plead guilty to escape detention in lieu of the time already served.
Prison officials are one of the most important, and often the most neglected, part of the criminal justice system. They regularly review the legal status of undertrials to determine whether they have spent enough time in custody to warrant release under Section 436A. Unfortunately, on average, only 66.3 per cent of the sanctioned posts are filled, with Bihar having only 21.1 per cent of the sanctioned prison official strength.
Second, the inability to post bail arises partly due to the profile of undertrials. Some two-thirds are SCs/ STs/ OBCs and three-fourths are illiterate or have studied till below Class X. Low education levels and economic activity mean lower incomes, making it harder to afford bail.
Third, the ineffectiveness of the existing legal aid system prevents these undertrials from being able to access statutory and constitutionally guaranteed legal aid. Poverty and low legal literacy makes many undertrials ignorant about the benefits afforded by Section 436A and their right to legal aid. Further, inadequate coordination among the legal services authorities and prison officials results in a failure to identify those requiring legal aid.
What are the solutions? Unfortunately, there are no easy answers. Simply sanctioning an increase in the judge-population ratio does not account for the existing reality of 4,564 judicial vacancies. Nor does it consider the work these criminal justice functionaries are doing; police officers often spend their time on law and order and VIP security, instead of criminal investigation. Thus, there are three officers for every “protected person”, but only one officer for 761 common citizens. Similarly, fast-track courts do not resolve the underlying structural problems since they function within the same procedural framework as regular courts.
Reforms should be oriented towards bringing criminal justice functionaries together and starting a conversation. Instead of merely announcing new initiatives, emphasis should be on ensuring the implementation of existing provisions, such as regularising the functioning of the Undertrial and Periodic Review Committees. Finally, efforts should focus on improving data collection and digitisation, and on mapping the existing reform landscape to prevent duplication of work.
The SC order and the government decision are steps in the right direction. Nevertheless, a lot more needs to be done to mainstream the prison reform agenda to ensure that our undertrial prison population is commensurate with, or below, the global average.
The writer recently graduated from the Blavatnik School of Government, University of Oxford.