In one of his much cited judgments of 1977, renowned Supreme Court judge VR Krishna Iyer said “if public justice is to be promoted, mechanical detention should be demoted”. In another he said, “the basic rule is bail, not jail”. That year undertrials constituted 55% of the prison population in India.
The bail-not-jail cry has since been often repeated in Indian courts, as recently as last month when Justice DY Chandrachud of the Supreme Court pronounced that “the writ of liberty runs through the fabric of the Constitution.”
“Deprivation of liberty even for a single day is one day too many,” said the judge while granting bail to media entrepreneur Arnab Goswami after a week in custody.
Goswami got lucky.
69 of every 100 prisoners in India are undertrials—accused but yet to be tried or convicted. Of them, 28 will get out in three to six months of incarceration. 14 will spend between one and three years behind bars, despite not having been proven guilty yet.
Not since 1980 has the proportion of undertrial prisoners dipped below 60%. In some states like Delhi and Bihar, eight of 10 prisoners are undertrials, according to 2019 NCRB data.
While these figures are damning of India’s judicial system, they are not the worst of it, according to a paper by Delhi-based lawyer Abhinav Sekhri that finds “the scandalous level of undertrial incarceration is not a flaw, but a feature of the criminal process in India.”
Sekhri explains, in the paper and subsequently in an interview with BloombergQuint, that undertrials constitute a high proportion of prison population for reasons that go beyond the general problem of high pendency, case delays, corruption, lack of prosecutorial oversight, understaffed judiciary and other such endemic inefficiencies in India’s judicial system.
To summarise Sekhri’s paper in brief:
Criminal Law
The absence of clear rules determining what kinds of offences should permit arrest without any prior warrant and/or deny a presumption of bail enables the easy deprivation of liberty for non-serious crimes.
280 offences within India’s Penal Code are cognizable (arrest without warrant) and 190 are cognizable and non-bailable. Simple offences such as theft are classified as cognizable and non-bailable. This classification of theft directly contributed to over 30,000 undertrial prisoners in 2019.
There has been no revisiting of the classification of offences in the Penal Code, despite this having been identified as an issue as long ago as the 78th Law Commission Report of 1979.
In fact, several new laws such as the Aadhaar Act or even Uttar Pradesh’s much criticised law against inter-faith marriages include cognizable, non-bailable offences. Even tax laws, such as the Central Goods and Services Act, 2017 provide that offences such as alleged evasion are cognizable and non-bailable.
Police And Judiciary
The standards regulating arrest-discretion for a police officer make it apparent that the scope is practically boundless and tailored to the subjective belief of the officer.
Across India, a presumption of bail does not exist for all offences, and the legal regime denies it for even those cases where the offence might be punishable up to only three years imprisonment.
A preference has been made for loose standards which confer judges with the widest possible discretion, which has meant that there are no clear rules within statutes to guide exercise of power, both in respect of the grant of custodial remand and the related issue of considering bail.
Judges are not required to adhere to any time limits while deciding bail applications nor are they required to pass detailed orders reasoning why bail applications are refused; however, reasons are expected where bail applications are allowed
Data suggest that judges are extending custodial remands for the whole duration of the investigative period, regardless of whether or not bail applications are filed and regardless of whether any investigative purpose will be served through granting such custody.