The speed with which Arnab Goswami was recently granted bail has thrown into sharp relief the multitudes for whom such quick access to justice will never exist. According to the latest figures from 2019, an extraordinary 69 per cent of inmates in prison are undertrials – persons who have not yet been declared guilty of any crime. Depriving persons of their liberty without a conviction is meant to serve a narrow purpose: Ensure that they do not abscond or tamper with the evidence or influence witnesses. Under the existing bail regime, however, there is legitimate concern that people are being incarcerated unnecessarily and languishing in jails for far longer than justified.
The problem begins with arrest. For decades, government reports and court decisions have noted the prevalence of unlawful and unnecessary arrests. Recent Supreme Court decisions and changes in criminal law have sought to introduce safeguards—for instance, requiring the police to refrain from arrest in certain cases if the accused appears before the police whenever she is asked. But the difficulty of complaining against police officials and weak internal incentives to discipline officers means there is little accountability for arbitrary arrests.
After 24 hours, the police must produce the arrested in court for magistrates to decide whether remand to further custody is warranted. A catena of judgments emphasises that magistrates cannot merely accept the say-so of the police. But an equally vast jurisprudence underscores how remand is extended mechanically.
Once arrestees are entangled in the system, their release depends on their access to legal aid, woefully inadequate in India and determined entirely by privilege, which also determines their ability to appeal upwards, if a lower court denies them bail, and their ability to demand rights, such as the right to be released if they are in custody for a certain period without being chargesheeted. It is little surprise that Muslims, Dalits and Adivasis are incarcerated at rates disproportionate to their population.
Some laws make bail even harder. Statutes such as those penalising drug and terror offences impose special restrictions on bail, which effectively condemn arrestees to brutally long custody pending trials. Provisions under ordinary law that mandate release of undertrials if they have spent half of the maximum possible sentence in custody do not apply to prisoners under special laws. The gravity of drugs and terror-related crimes is used to justify such draconian restrictions. But letting the seriousness of the allegation become a primary consideration in bail means that prosecuting agencies can simply trump up charges to ensure years of punishment.
Finally, one major impediment remains even once a court has granted bail. Landmark judicial decisions have long deprecated the practice of courts demanding excessive surety or local sureties. If an arrestee cannot afford her surety condition, or does not know anyone locally willing to stand as surety for her, she must remain in jail. As reported to the high-powered committee set up to decongest prisons in Delhi during the lockdown earlier this year, hundreds of prisoners were in jail only because they could not meet their surety conditions. The HC passed a one-time order doing away with the surety conditions in light of the pandemic, though the problem will remain long after the pandemic.
One-time orders characterise the court’s response to many of these issues. In decisions on the drug-related offences law in 1994 and anti-terror law in 1996, the court recognised that where a speedy trial is not possible, bail restrictions equal unduly long confinement and infringe on Article 21 rights. In both cases, the court passed one-time orders directing certain undertrials to be released, while clarifying that the orders would not affect future cases. In another 1996 decision, the Delhi HC appointed court commissioners to investigate the background of prisoners unable to afford surety and passed one-time directions relaxing their bail conditions.
These orders evidence widespread recognition of fundamental issues with bail, yet refrain from systemic change. In the absence of large-scale reform, however, we will continue with a regime that in its daily reality both horrifies and numbs.
This article first appeared in the print edition on November 30, 2020 under the title ‘Justice on trial’. The writer is a lawyer based in Delhi