Why India’s Review Mechanism To Release Prisoners Is Inadequate

According to National Legal Services Authority’s (NALSA) April-June quarterly report on the functioning of Undertrial Review Committees (UTRC), as of April 2024 there were nearly 530,000 prisoners of which 74.6% were undertrial. The UTRC, which was established based on a 2015 Supreme Court order, has district-level committees headed by the District & Sessions Judge, with the District Magistrate, Superintendent of Police and Secretary, District Legal Services Authority as members. The committee reviews cases of prisoners and ensures they are not subjected to prolonged detention.

According to National Crime Records Bureau’s latest prison data, there were 570,000 prisoners as of December 31, 2022. The prison population had reduced 8% by April 2024. The number of undertrial prisoners fell 9% to about 390,000 since 2022. Three in four prisoners are, as we said, still under trial--down one percentage point since 2022.

India is reported to have the fourth highest number of people in prison in the world after the US, China and Brazil, according to World Prison Brief data. Of these countries, India has the highest proportion of undertrials. As the year draws to a close, we take a look at India’s mechanisms to release undertrial prisoners.

Half the prisoners identified for release remain in jail

Undertrial review committees identified about 5% of prisoners--that is, 24,100 of 528,728--for review based on 14 categories. Of these, 15,777 were recommended for release and 12,395 bail applications were filed. Bail was granted to 74% of them, and 7,421 prisoners were released according to the NALSA data. That is, 1.4% of all prisoners were released through this process, less than half of those recommended for release.

Overall in 2024, based on the estimates of the quarterly data between January and July, over 42,000 prisoners were recommended for release by the UTRCs. Of these, 19,911 prisoners were released.

In October 2024, in the Suhas Chakma versus Union of India and others case, the Supreme Order instructed that “the huge gap between total number of persons identified by the UTRC and the number of persons recommended for release should be looked into and adequate corrective measures be taken”. It further said that NALSA, SLSAs and DLSAs must particularly look into the gap between the number of prisoners recommended for release and the number of bail applications filed.

The writ petition was filed to provide directions to governments for ensuring prisoners are not subjected to torture, and to cruel, inhumane and degrading treatment or punishment because of living in overcrowded and unhygienic conditions in jail.

In the next quarterly meeting in July, according to NALSA’s July-September newsletter, 20,103 prisoners were identified for review. Of these 14,048 prisoners were recommended, resulting in the release of 7,366 prisoners or 52%, which was more than the previous quarter.

Despite a 2022 UTRC special campaign to identify undertrial prisoners eligible for release and subsequently reduce the overcrowding of prisoners, prison occupancy in India increased by one percentage point to 131% in 2022. Based on April 2024 UTRC data, with a prison capacity of 436,266, prisons are overcrowded by 21%. India is ranked 74 in terms of occupancy rates, with 135 countries and territories having lower occupancy rates, according to the World Prison Brief.

In August 2024, the Supreme Court said that Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) shall apply to “all undertrials in pending cases irrespective of whether the case was registered against them before 1st July 2024”. The Section provides for timely bail and consideration for early release on bond of first time offenders, potentially reducing prison overcrowding. (India had replaced its three erstwhile criminal laws in July with BNSS, Bharatiya Nyaya Sanhita and Bharatiya Sakshya Adhiniyam.)

A December 2024 government response in Parliament said that administration and management of prisoners, including the issue of addressing overcrowding in prisons, was the responsibility of respective states and Union Territories.

It went on to highlight steps taken by the Union government in the new criminal laws to address prison overcrowding including BNSS Section 479, pre-trial negotiation between the defendant and the prosecution, using National E-prisons portal for identifying prisoners whose cases are due for consideration by the UTRCs, and awareness camps in jails on legal aid, plea bargaining, Lok Adalats and legal rights of inmates, including their right to bail.

“When prisoners are not allowed to live as per the facilities determined by the Prison Manuals, they cannot lead a dignified life,” said Suhas Chakma, director of the Rights and Risks Analysis Group, who filed the writ petition at the peak of Covid in 2020 when prison overcrowding became a serious health issue. “It is [like] living constantly under torture and I wanted the courts to look into the issue, particularly reducing overcrowding and ill-treatment of prisoners.”

UTRC is an efficient system but there are issues, Medha Deo, programme director, Fair Trial Programme of Project 39 A, said. “DLSA is supposed to identify [undertrial prisoners] based on various categories. It is very difficult to identify manually who falls under which category,” said Deo. “There are no automated systems and identification is ad hoc. The recommendation does not mandate a bail.”

Deo also said that there is no guideline on how to implement the identification of UTRC recommendations. “It will vary in each district, and the process cannot be challenged if an eligible person is not recommended.”

IndiaSpend has written to the department of justice and NALSA for comments on the large number of undertrials, proportion of prisoners released compared to those recommended for release, and the quality of legal aid. We will update this story when we receive a response.

More than 400 prisoners did not have legal representation

In 2023 the Union government launched a cash bail scheme for poor prisoners who were unable to pay despite getting bail. IndiaSpend reported that despite the government’s scheme to provide cash bail to poor prisoners, the scheme has not been effective.

Bail application was filed for nearly 80% of those recommended for release but there were around 422 undertrials or 3% of those recommended who did not find legal representation. Of these, 115 were for those under compoundable offenses and 60 for those who are unable to pay sureties. IndiaSpend has reported on the impact of poverty and poor legal representation on the incarcerated population, the majority of whom are from oppressed and marginalised caste groups.

“Irrespective of the person having a private lawyer, it is the DLSA’s responsibility to ensure that the UTRC bail application is filed. Legal aid lawyer files the application in court,” said Deo.

Around 18% of undertrial prisoners recommended in West Bengal did not have a lawyer, followed by 14% in Delhi. Majority of the prisoners had private legal representation and more than one in three were represented by legal aid lawyers.

Legal aid is a right in India, but its quality is impacted by the way legal aid counsel are treated by the justice system, IndiaSpend reported in December 2022. “Legal aid fee [for lawyers] is nominal, and therefore, it is difficult to get quality legal aid and that is why the Court had said legal aid for the poor must not be poor legal aid,” Chakma said.

Chakma said judges, especially, in the lower courts, are reluctant to release prisoners who are charged with serious offenses. “One of the reasons why people remain in jail is the requirement for personal surety as a bail condition. There must be a classification of offenses where such personal surety requirements are needed. Personal surety requirements should be relaxed and the bail system of personal surety requires reform.”

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