A Separate Bail Law Can Help Decongest India's Jails: Experts

India has 371,848 prisoners in pre-trial detention, known locally as undertrials.

76%--three in four--of all prisoners in Indian jails are awaiting trial. This compares unfavourably with the global average, which is 34%.

On the metric of percentage of undertrials, India ranks second--next only to Bangladesh--among the 54 Commonwealth countries (former British colonies, many of whose legal systems continue to reflect a colonial legacy), according to a June 2022 Commonwealth Human Rights Initiative (CHRI) report on pretrial detentions.

Globally, India ranks sixth after Liechtenstein (91.7%), San Marino (88.9%), Haiti (81.9%), Gabon (80.2%) and Bangladesh (80%).

Besides the absolute numbers is the length of incarceration without trial: One in four undertrials have been confined for one year or more, and one in eight have been in jail for two to five years, according to Indian government data from 2020. Over a decade to 2020, the percentage of undertrials who have been in jail for one year or more has increased nearly seven percentage points to 29%.

What the numbers add up to is this: India has more prisoners awaiting trial than ever before, and more prisoners are spending longer periods in jail than before.

The Covid-related lockdowns of 2020, when India's courts went virtual, saw a 12% increase in the number of undertrials in the period until December 2020, compared to an average increase of 4% in the previous four years, IndiaSpend reported in February 2022.

What this means is that three out of every four prisoners in India are de facto serving punitive sentences without having been found guilty of any crime.

Further, as more people are arrested every day, as more people spend more time in prison awaiting trial, it adds up to overcrowding which exacerbates the already unsanitary conditions in our prisons, leading to the spread of communicable diseases in an ecosystem where healthcare is not easily accessible, the CHRI report points out.

Taking note of the spike in the number of undertrials during the first wave of the pandemic, the Supreme Court appointed High Powered Committees that resulted in the release of 68,264 undertrials and a fall in jail occupancy by 17%, per data compiled by CHRI.

Yet, on July 11, 2022, the Supreme Court noted that, despite multiple judgments and directions by the court over decades, Indian jails were "flooded" with undertrial prisoners. The court directed the Union government to consider introducing a separate Bail Act to streamline the process of granting bail, along the lines of a similar act in the United Kingdom.

The court also directed state governments and union territory administrations to comply with its past orders on filling vacancies in special courts expeditiously and to constitute more special courts. It also directed High Courts to facilitate the release of undertrial prisoners who were not able to comply with their bail conditions. The SC gave the administrations and courts four months to file affidavits/ status reports.

"…we should," said Chief Justice of the Supreme Court N.V. Ramana, "question procedures which lead to such prolonged incarceration in huge numbers without a trial." And on July 30, Prime Minister Narendra Modi urged district-level undertrial review committees "to expedite the release of under-trial prisoners".

Why are India's prisons packed with undertrials?

Legal experts point to a multiplicity of reasons to explain India's high percentage of undertrial prisoners, chief among them being indiscriminate arrests by the police without due application of mind. Taking note of this tendency, the SC said in July 2022 that an arrest is a draconian measure that should be used sparingly, based on the presumption of innocence. Unnecessary use of arrests betrayed a colonial-era mindset on the part of investigating agencies, the SC said in a rebuke.

A related issue is the inability of undertrials, especially from economically weaker sections, to access legal support--this, despite free legal aid being enshrined as a Constitutional right. This is coupled with the inability of poor people to comply with bail conditions which almost invariably include a financial bond.

Compounding the issue is the fact that an undertrial loses their ability to earn a living, thus creating additional financial pressures and pushing entire families into poverty.

Legal experts say that in order to solve this problem, India should urgently adopt practices such as the UK's bail act, which the SC has also recommended. However, a new bail law in itself will not help to reduce the undertrial population, they argue, pointing to the need to stop arbitrary arrests by police forces.

IndiaSpend has requested senior officials in the Ministry of Home Affairs and Ministry of Law and Justice (Legal Affairs and Legislative departments) for comments on plans for a new bail law, indiscriminate arrests and punishments for errant officials, and adopting practices from other countries. We will update the story when we receive a response

Indiscriminate arrests a big factor behind high proportion of undertrial jail inmates

On July 20, 2022, the Supreme Court while granting bail to journalist Mohammed Zubair, who was arrested by the Delhi police on June 27, 2022 for allegedly hurting religious sentiments, criticised indiscriminate arrests by police.

"Arrest is not meant to be and must not be used as a punitive tool, because it results in one of the gravest possible consequences emanating from criminal law: the loss of personal liberty," the court said.

In January 2021, the Allahabad High Court had cautioned against the police's "irrational and indiscriminate arrests" which it said were a "gross violation of human rights". The court pointed to the third report of the National Police Commission, which highlighted the problem of arrests and corrupt police actions more than 40 years ago, in 1980. The report had found that more than 60% of arrests "were connected to very minor prosecutions", and that unnecessary arrests lead to 42% of jail expenditure.

In 1999, a Law Commission consultation paper on laws relating to arrest found that the "percentage of arrests in bailable offences is unusually large, ranging from 30% to more than 80%", and that arrests for petty offences is "substantial, if not more than the arrests made for serious offences".

An August 2021 study by the Bhopal-based Criminal Justice and Police Accountability Project (CPA Project) on excise policing in Madhya Pradesh, which examined more than 540 randomly-selected Excise Act-related First Information Reports (FIRs) in the state, found that nearly 47% of the arrests were made under bailable sections of the Act. The police, which could issue notice under Section 41-A instead of carrying out arrests, did so for "only 105 accused persons out of the 503 FIRs registered under bailable offences".

"The problem [of excessive undertrial incarceration] begins with indiscriminate arrests by police," said Leah Verghese, research manager at Daksh, a Bengaluru-based law and justice reforms think-tank. "Magistrates must ask the police to furnish reasons for an arrest, and currently it looks like this does not happen. A bail act can provide guidance on this."

Compounding the problem is the fact that the police rarely, if ever, face repercussions for wrongful arrests. "If there are adequate consequences in law when there is failure on the part of any actor to perform, they will automatically be careful," said Madhurima Dhanuka, programme head, Prison Reforms Programme at CHRI and lead author of the CHRI report.

"Our policing continues to depend on colonial laws, and the government must take initiatives to discard those practices," said N. Ramachandran, a former police chief and president of the Indian Police Foundation, a think-tank on police reforms. For effective policing, it is important to retain the discretionary powers of the police to arrest or not, but what is "important is to prevent the misuse of such discretion", he said.

There are many interconnected issues that the police force faces, like staff shortages and limitations in training infrastructure which leads to inadequate opportunities for in-service training and trickling down of information on legal issues, Ramachandran pointed out.

Undertrials lack access to justice, despite legal aid laws

If the above factors increase the number of undertrials, what happens after the arrest is equally a contributing factor to the problem.

In 1979, the first reported Public Interest Litigation petition (Hussainara Khatoon v State of Bihar) highlighted the conditions of undertrials in prisons. In its judgement that year, the Supreme Court said that the "state cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading financial or administrative inability", and also highlighted the problem of poor undertrials being unable to furnish bail. Over four decades later, undertrials continue to face the same set of challenges, our reportage found.

When Rizwan*, 30, an undertrial in Pune's Yerwada central prison, went to jail for the second time, he decided to submit an application for a legal aid lawyer. "I knew about government lawyers, but they function like [a case] is a [lengthy cricket] Test match. A person loses hope," Rizwan, a widower with two children, who was released on bail after nearly two months in jail, told IndiaSpend.

It only took "two mulaqaats [meeting] with the lawyer this time" to be released on bail, and it cost him nothing compared to when he had engaged a private lawyer earlier, he said.

Rizwan, who runs a mobile repair shop, said that during his previous stint in jail in a drug-related case, his family had to spend nearly Rs 80,000 for a private lawyer, and additionally furnish bail of Rs 50,000. This time, he approached a legal aid lawyer through the Fair Trial Fellowship Programme of Project 39A at the National Law University, Delhi. "When I came home, my mother was curious to find out how I had managed, since the process had cost us over Rs 1 lakh earlier," he said.

Pravin Gunjal is a social work fellow at the Fair Trial Fellowship Programme. The programme works with the Maharashtra state legal aid department to ensure fair trial for undertrial prisoners in Nagpur and Pune central prisons.

Gunjal visits the Pune prison barracks thrice a week, where undertrial inmates approach him with applications for legal aid and sometimes to get other forms of help, such as contacting relatives. "In a month, we receive around 40 to 50 requests for lawyers and we meet 50-60 clients weekly," Gunjal told IndiaSpend. "There are inmates with private lawyers who approach us for information, and a few who wish to shift to legal aid lawyers."

"The majority of undertrial clients (55.8%) do not have a bail filing [application] or have bail orders pending for their compliance (27.3%)," said Medha Deo, programme director of the Fair Trial Fellowship Programme. Undertrials will have a lawyer representing them at first production, even if not arranged by them, but these lawyers may not be invested in the process later, said Deo.

The Fair Trial Fellowship Programme has represented 2,770 undertrials between January 2019 and October 2021. It received 1,795 applications for legal aid lawyers, filed 791 bail and modification [changes to a bail order to facilitate compliance by the undertrial, for instance by reducing the bail amount] applications, and got 515 undertrials released as of the time of reporting this story.

At the police station level, however, suspects do not have access to lawyers or may not be aware of their right to a lawyer, legal aid lawyers told us. This, despite the National Legal Services Authority guidelines directing the police to inform the suspect that free legal assistance can be availed from the Legal Services Authorities. All accused are entitled to such aid, regardless of their means, per the Legal Services Authorities Act, 1987.

Often, the police get the accused a private lawyer, said Deo. "Police-referred lawyers tend not to raise issues about any violations like torture, violence, procedural violations," she said. "While there may be a lawyer, the quality can be questioned."

Many rights of an accused are violated at the police station, including the infliction of physical or mental abuse. Having a lawyer is the most important step towards ensuring that rights are not violated in police custody or during interrogation, said Dhanuka of CHRI. Rizwan, for instance, told us that he was not informed about his right to a lawyer at the police station.

Given this lacuna, abuse of process is common, and egregious. More than 60% of deaths in police custody occur within 24 hours of arrest, before they can be produced in court before a magistrate, IndiaSpend reported in October 2020.

Lawyers or paralegals being made available at the police station level will help ensure that there are no rights violations, legal aid lawyers said.

India's "broken" bail system and the way forward

"The existing system of bail in India is inadequate and inefficient to accomplish its purpose," said a Law Commission of India report in May 2017.

As mentioned earlier, the Supreme Court in July asked the Union government to consider an act solely for streamlining the granting of bail, on the lines of the UK's Bail Act. The Act considers various factors, including the undertrial prison population level, granting of bail both before and after conviction, matters of violation of bail and the acceptance of the right to access bail.

Though a new bail law alone will not help solve the problem if arbitrary arrests continue, Dhanuka argues, India does have a serious issue with regard to the high undertrial population, and it will be prudent to look for solutions and good practices in other parts of the world which can be adapted based on need.

Experts feel that Indian courts are not adequately informed about the socio-economic conditions of undertrials and the resulting implications on their ability to furnish bail and sureties. Two of three undertrials in India belong to marginalised caste groups including Scheduled Castes (SCs) and Tribes (STs) and Other Backward Classes (OBCs), according to government data. Further, nearly 68% of all undertrials are illiterate or educated below secondary school.

The CPA Project study had noted that persons from marginalised caste groups were disproportionately affected by unnecessary arrests under the Excise Act. Another study led by the late Fr Stan Swamy had found in 2015 that among undertrials charged with being Maoists under stringent, non-bailable offences in Jharkhand, a high proportion were SCs, STs and OBCs, and most if not all were poorly educated, IndiaSpend reported in October 2021.

Ironically, Fr Stan Swamy himself was one among those arrested in the Bhima Koregaon-Elgaar Parishad case in October 2020. The 84-year-old social scientist and Adivasi rights activist died in judicial custody in July 2021, without ever being brought to trial or granted bail.

"The issue of undertrials not getting bail is not a money problem alone. Often the condition of bail is production of one or more sureties [people with some standing in the community who can assure the court that the undertrial will attend court hearings]. It is difficult for poor people and migrants to produce sureties," said Verghese of Daksh.

Courts should impose "reasonable conditions for bail" and should not insist on local sureties, as it may not be possible for the accused person to ensure compliance of such conditions despite granting of bail, said the May 2017 Law Commission report.

Further, there is no system for tracking if undertrial prisoners who have got bail have actually been released, and the prison staff may not know if a person has got bail because this information is not communicated to prisons, said Verghese.

In 2020, only 442 undertrials, or 34% of those eligible for release under Section 436A of the Code of Criminal Procedure which allows release of those who had been in jail for a period of more than half the sentence for the accused offences cumulatively, were released.

In January 2022, the Supreme Court warned the UP administration against non-compliance with bail orders even a month after granting of bail. In another case in June, it warned the state about not releasing an undertrial who had spent more than 10 years in jail.

"The current bail system is broken," said Deo. "We thought inmates are unaware of legal aid or feel the quality is inferior; instead we found that undertrials leave the legal aid system before the allocation of legal aid lawyers is completed. This also includes the category of undertrials who plead guilty in desperate attempts to get out of prison."

There is a need for a data-based diagnosis, said Deo, to understand how many undertrials have a bail order or not, how many are stuck due to inability to comply with bail conditions, how many get rearrested and so on, as much of this information is currently anecdotal.

Rizwan, who got bail in two months because he was able to access legal aid, is relieved, but said there are many inmates who continue to languish in jails because of the lack of quality support.

To reduce pretrial detentions, the CHRI report recommended the framing of liberal provisions permitting bail at the police station level, revisiting laws of arrest to include clear definitions of illegal arrests, strengthening legal aid systems, exploring non-custodial alternatives and ensuring transparent data dissemination and sharing.

*Name has been changed to protect the identity of those undergoing trial.

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