Under-trial prisoners constitute a staggering two thirds of India’s prison population.
The gravity of this situation has not escaped the attention of the Supreme Court of India, which has been concerned with the detention of under-trial prisoners since the late 1970s. Three issues form the core of the Court’s concern. First, whether lower courts have unnecessarily detained under-trials who should have been released on bail. Second, whether the conditions of detention in Indian prisons are unsafe and inhuman. Third, whether under-trial detention has led to further criminalization of under-trials and recidivism. However, despite the frequent intervention of higher courts, undertrial detention rates have remained at 70% and is a pressing and urgent problem that deserves our collective attention.
Why are under-trial detention levels high?
In its 268th Report, the Law Commission of India echoed the Supreme Court’s concerns. It stressed that urgent measures need to be taken to curtail the length of detention, and concluded that the law relating to bail must be revisited to prevent this. In arriving at this conclusion, much of the report focused on a doctrinal analysis of bail provisions and relevant Supreme Court decisions, and devoted only a small section to the disproportionate burden placed by monetary bail system on detainees from marginalised socio-economic backgrounds. Further, limited attention was paid to long periods of undertrial incarceration as a direct consequence of the bail decision making process by courts.
Civil society organisations that have studied the problem of under-trial detention in India have also traditionally focused on the conditions of detention. Detailed studies of prisons across all Indian states conducted by the Commonwealth Human Rights Initiative have revealed that there is poor monitoring and inspection of prisons, and patchy compliance with the Supreme Court’s directions on establishing Under-Trial Review Committees which facilitate periodic review of detention levels and the availability of legal representation for under-trial prisoners.
A 2017 report released by Amnesty International marshalled information gathered on the level of under-trial detention across Indian prisons through requests under the Right to Information Act, 2005. The report demonstrated the failure of institutional mechanisms designed to protect under-trial prisoners and supervise jails in India. It found that despite the average occupancy rate in Indian prisons reaching 114%, very few prisons have identified under-trial prisoners who are eligible to be released on their personal bond i.e. under-trial prisoners who have spent more than half of the maximum period of imprisonment prescribed for the offence of which they have been accused. It also presented data on the shortage of police escorts to produce undertrial prisoners in court and the failure of legal aid lawyers to visit prisons regularly, which effectively prolongs their period of detention.
The reports of the Law Commission and other civil society organisations underscores the pressure exerted by a large number of pre-trial detainees on an already over-stretched system.
With several jails running at 150% capacity, excessive prison populations also raise concerns of hygiene and discipline. Further, the demographics of those likely to be incarcerated is also relevant as 70.6% of under-trial prisoners in India as of date are illiterate or semi-literate.
This shows that the economically vulnerable, the illiterate or semiliterate, and persons from socioreligious minority communities are more likely to end up in Indian prisons.
However, these reports tell us little about the reasons for the high levels of under-trial detention in India – what brings so many individuals into the prison system? Legal Analysis of Bail Decision Making
The primary situs of decisions on bail and detention of under-trial prisoners is the trial court, yet it has been neglected thus far. Standard legal commentary on bail in India only engages in a legal and doctrinal analysis of the statute and related court decisions, such as on the constitutional right to legal aid. For instance, while we can agree that bail in the pre-trial stage should impose the least restrictive conditions to ensure appearance in court, academic literature on bail and under-trial detention in India do not provide any normative view on the process of bail decision making by courts.
Academic criminology research on the relationship between bail and under-trial detention is also scarce. Available research on under-trial detention has primarily relied on data collected from police stations and prisons, collated and released by the National Crime Records Bureau. These studies have approached the issue from the perspective of institutional failure of the prison system and legal aid, and the burdens placed by a cash bail system on indigent defendants. As a result, suggested interventions in this field also focus on the conditions of detention, access to legal aid, compliance with Supreme Court orders, placing fetters on an over-broad exercise of arrest powers, and strengthening institutional infrastructure and resource allocation. Court Based Bail Decision Making: A Study
Civil society interventions, legal policy reform efforts and academic literature, therefore, have not focused on the process of bail decision making by lower criminal courts in India and its influence on the levels of detention, unlike in the United States. This study attempts to bridge this weakness in studies on under-trial detention, by focusing on the site of decision making on bail and detention – the lower criminal courts – rather than on the site of detention (prisons). In this study, we focus on the State of Karnataka.
We adopt two distinct approaches to analysing bail decision making, which is motivated by the need to understand how lower courts routinely interpret and apply the law on bail in real cases – first, through in-person court observations of first productions, which is the first time an accused is produced before the trial court within 24 hours of being arrested and second, by studying court records over a period of 6 months to analyse bail decisions in the pre-trial stage (before a charge sheet is filed). We seek to identify the factors relevant to a decision on bail or detention upon production of an accused as well as the frequency of and conditions under which bail is granted. Thus, lower criminal courts were chosen as the primary centres for observation and collection of data on production of under-trial prisoners, to identify both substantive and procedural factors that drive bail decisions. Ascertaining the rationale employed, if any, in a decision to grant or refuse bail or the factors driving a such a decision will consequently help in identifying the areas for reform to control the current levels of under-trial detention.
This report is organized into seven Chapters. In Chapter II, we describe the methodology for our study and data collection in greater detail, including our choice of sites and the mixed-method approach to the study. In Chapter III, we define the scope and extent of the problem of under-trial detention in India, and survey data on crime, arrest and undertrial statistics in the State of Karnataka. In Chapter IV, we introduce the important analytical distinction between pre-trial and under-trial detention. We explore the various stages in the criminal trial where bail may be granted and the factors the shape a bail decision, which is informed by contemporary law and policy debates on bail reform in the US and the UK. In Chapters V and VI, we review the data on bail outcomes in Karnataka at first production and in the pre-trial stage. In particular, we assess the extent of influence of various substantive and procedural factors, such as the nature of the offence, availability of legal representation, and interaction with the court. In Chapter VII, we conclude by assessing key findings of this study and make recommendations on streamlining the bail decision making process to control the level of under-trial detention in India.
The objective of this study is to shift attention from conditions of detention to court based bail decision making to understand and explain the levels of under-trial detention in India. It proposes a range of new policy approaches to under-trial detention that address issues of legal arbitrariness and social justice, which must motivate and sustain legal reform efforts in this field.
- ‘Prison Statistics 2016’ (National Crime Records Bureau, Ministry of Home Affairs, India) <http://ncrb.nic.in/> accessed 20 September 2019 ↵
- At present, the Supreme Court is monitoring the conditions of prisons in India through a suo moto public interest litigation in Re Inhuman Conditions in 1382 Prisons, Writ Petition No. 406 of 2013. ↵
- Law Commission of India, Amendments to Criminal Procedure Code, 1973 – Provisions Relating to Bail (268th Report, May 2017). ↵
- ‘Looking Into the Haze: A Study on Prison Monitoring in India’ (Commonwealth Human Rights Initiative, 2016) < https:// humanrightsinitiative.org/publication/looking-into-the-haze-astudy-on-prison-monitoring-in-india-2016> accessed 23 November 2019. ↵
- ‘Circle of Justice: A National Report on Under Trial Review Committees’ (Commonwealth Human Rights Initiative, 2016) < https://www.humanrightsinitiative.org/publication/circle-of-justicea-national-report-on-under-trial-review-committees> accessed 23 November 2019. ↵
- ‘Justice Under Trial: A Study of Pre-trial Detention in India’ (Amnesty International India, 2017) < https://amnesty.org.in/justice-trial-studypre-trial-detention-india/> accessed 23 November 2019. ↵
- It has touched 233.9% in certain states. ↵
- Code of Criminal Procedure (CrPC), 1973, s 436A ↵
- ‘Justice Under Trial: A Study of Pre-trial Detention in India’ (Amnesty International India, 2017) 23 <https://amnesty.org.in/justice-trialstudy-pre-trial-detention-india/> accessed 23 November 2019. ↵
- In the states of Assam, Chhattisgarh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Rajasthan, Uttar Pradesh and Delhi. ↵
- Re - Inhuman Conditions in 1382 Prisons, (2016) 10 SCC 17 ↵
- ‘Prison Statistics 2015’ (National Crime Records Bureau, Ministry of Home Affairs, India) <http://ncrb.nic.in/> accessed 18 April 2019. ↵
- Sarkar, Commentary on the Code of Criminal Procedure, 1973 (2007); P. Venkatesh, Law of Bails (2008); R.V. Kelkar, Criminal Law and Procedure, Vol. XIV Annual Survey of Indian Law, 185 (1978). ↵
- Vrinda Bhandari, ‘Inconsistent And Unclear: The Supreme Court Of India On Bail’ (2013) 6 NUJS L. Rev. 549; Vrinda Bhandari, ‘Pretrial Detention in India: An Examination of the Causes and Possible Solutions’ (2016) Asian Criminology 11:83–110. ↵
- ‘Administration of Pre-trial Release and Detention: A Proposal for Unification’ (1973) Yale Law Journal, Vol. 83(1), 153. ↵
- ‘Incarceration’s Front Door: The Misuse of Jails in America’ (Vera Institute of Justice, 2015). ↵
- ‘CHRI’s recommendations to the National Crime Records Bureau’s Annual Report – Prison Statistics of India (Commonwealth Human Rights Initiative, 2017) <http://www.humanrightsinitiative.org/ download/1498107712CHRI%20Submission%20to%20NCRB%20 on%20Prison%20Statistics%20India.pdf> accessed 23 November 2019. ↵