Undertrial detention in India

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Welcome to the Daksh podcast I’m Leah. I work with Daksh which is a Bangalore based nonprofit working on judicial reforms and access to justice. One of the tragedies of the Indian prison system is the high proportion of undertrial prisoners. As of 31st December 2020. There were 3.7 lakh under trial prisoners in India’s prisons, three fourths of the total prison population. Under trial prisoners are those prisoners who have not been convicted of a crime yet, their trials have either not started or are ongoing. 87% of them are Muslim Christian, Dalit Adivasi or OBC. The overuse of undertrial detention effectively ends up punishing people before they are convicted and makes a mockery of their right to be presumed innocent until proven guilty. The high number of undertrial prisoners in our system has not changed in the last three decades. This week a chatting with Dr. Vijay Raghavan about undertrial detention and Indian prisons. He is a professor at the center of Criminology and Justice at TISS. He’s also the project director of Prayas, which has been working for the last 30 years towards rehabilitation and social integration of persons in prison, women rescued from commercial sexual exploitation and children in conflict with the law. I began by asking Vijay to describe the Indian prison landscape in terms of demographics and categories of prisoners.

So if you look at the overall prison statistics India report which is published every year and the last report that we have with us is the 2019 Report. There are about four and a half lakh plus prisoners right now at any given point of time. The prison statistics India report counts the number of prisoners as on 31st December of that year. So the last figure that is available is about four and a half lakh prisoners 70% nearly of them are under trials, around four to 5% of them are women. There are about 1300 Odd prisons in the country in which these prisoners are kept across the 29 states and union territories. In terms of demographics, women constitute a very small percentage about 4%. If you look at people from the marginalized sections of society, Indian prisons are highly over represented as is the case in prisons across the world. So if you look at SC, ST, OBC, and Muslim community, it constitutes more than 85% of the total prison population, which shows that most of our prisons are full of people from the marginalized sections of society. If you look at the socio economic profile, you will find that there is no official data on this but experience of people who have been working in the system tells us that most of the people 75 to 80% of people in our prisons come from the very poor sections of society in terms of class and economic background. And also in terms of family support, a large number of under trials, as well as convicted prisoners come from family backgrounds, which are very weak, as well as families, which may be in some kind of a conflict situation from where they come. So that pretty much sums up the situation of prisoners and specially undertrial prisoners in our country.

Yeah, so I’m zeroing in on the undertrial problem. So you know, we’ve been talking about this issue for so many years, there’s been a lot of media attention, but the problem doesn’t seem to go away. What do you think are the main reasons for such a high proportion of under trials in our prisons?

Well, like all complex problems, the solutions are also not very simple. There are multiple reasons for that. I would focus on starting with the lack of access to competent legal aid, as one of the prime reasons why there are people who are languishing in prisons. The second area, which is crying out for reform is the whole issue of grant of bail. The bail system in our country needs a complete thorough, relook. Then, of course, the most top two issue is the one of the fact that there are delays in our trial process. And as Daksh you are a much more competent organization to talk about, you know why there are these delays. One, of course, is the judge population ratio in our country, which needs a relook. Second is the kind of adjustments that are allowed in court cases, the legal procedures, which are in place, also need some kind of a review. So I’m not much of an expert on that area. But I can say that a lot of the issues are also related to the fact that, you know, people cases go on for years together, whether they are as under trials or after they get released on bail. There’s also this issue of under trials not being produced on their court dates on time, because of the fact that we don’t have enough police persons to escort them to prison from prison to court on their court dates. As for the CRPC, the law is that it is the job of the police to take prisoners to court or to hospitals, unlike in many other countries where prisons have their own escort facilities, whereas here the responsibility is given to the police. And here we find that because police has many other priorities, police themselves are understaffed and overworked. And law and order is always a higher priority as far as they’re concerned. So escorting prisoners to court or to hospital comes very low on their priority list. So very often, what happens is that the date comes, and instead of the prisoner being physically produced in court, that remand warrant is taken to the court, and the remand warrant is kind of stamped by the court officer. And he or she is then given another date. And this can go on for a few times before the person is physically produced. We also have a system of production of under trials through video conferencing today. But even that system seems to be not working so well, because of number of practical issues. And in opinion of some of us, it’s also there are other human rights issues involved when one is talking about producing under trials through the video conferencing system, because it completely takes away any possibility of the prisoner, meeting their lawyer in court or to meet their family members in court, which is a much easier process than meeting family members in the prison walakat system. And one more reason, of course, which I think I forgot to mention is the fact that we are constantly arresting more and more people, a lot of whom probably don’t need to be kept behind bars. And you know, there are supreme court orders as well as there is a CRPC amendment in 2013, which allows the police the discretion not to arrest and just charge the person with the offense in certain categories of offenses, and ask the person to be in court when the case has been started. But however, police often, in fact, routinely arrests everybody instead of using this discretionary power. So these could be some of the reasons why, you know, the numbers don’t seem to be going down.

Yeah, the issue of, you know, arbitrary arrests and indiscriminate arrests is something you know, we’ve been discussing in other episodes of our podcast, too. And that’s a good segue to my next question. You know, we’ve seen in the recent high profile cases like Aryan Khan, you know, where the police, our other law enforcement agencies insist on arrest and custody, irrespective of how shaky their case is, or whether you know, the accused is a pregnant woman or an 84 year old man with Parkinson’s. Why do you think law enforcement agencies and public prosecutors insist on custody long periods of custody?

There could be a range of reasons for this. Also, my own senses that there is a the chilling effect that happens when you arrest somebody, it sends out a message to the rest of society, police thinks that it is their job to send down that chilling effect. The other reason I’ve often heard police officers informally discuss is that when they don’t arrest people in the nearby locality, the immediate community where the police is located, and I’m talking of ordinary offenses, not talking of cases like UAPA, and, you know, national investigation agency kind of cases, but ordinary cases which found the bulk of the pieces that come to prison, when they don’t arrest people in the area think that there’s some Hanky Panky going on, you know, why isn’t the police arresting the person and they might even assume that the police has taken a bribe in not taking there is lot of pressure on the police from the local communities to show some kind of you know, action and action is often seen in terms of arrest. In fact, this is also one of the reasons why I find that police does not give bail at the police station what is called as table jamming in Hindi common parlance, which is The practice which you probably only see in Hindi films, when you know, the lawyer comes to the police station, and you know, gets the person out on bail. But typically, the police has powers to release the person on bail in bailable matters at least. And you never see that option being exercised by the police, the police leaves it to the court for the bail to be granted. And here again, I’m suspecting that the reason is the same, that they are either worried or scared that if they do that, then the people in the area an impression would get created that there is some illegal practices because of which the person has been released on bail. Of course, there is also the issue of you know, who has how much influence sometimes cases, for the same kind of offense, what exact section would be imposed is often a matter of some discretion, as far as the arresting police officer is concerned, in a case of, let’s say, assault, whether to apply section 323, which is simple hurt, or whether to apply 324 or 326, which is grievous hurt is a matter of interpretation, at least at the stage of arrest. And there is a possibility of influence coming in, or even money changing hands, because of which a particular section would get imposed on that person. So for example, 307, or 326 307 is attempt to murder 326 is grievous hurt, whether to apply treatment or six or to apply 307 Because it has implications on bail, the kind of section that has been imposed. So these are also some of the factors. In fact, once in undertrial, prisoner had told me in Hindi, that, you know, police station my case pakta, which means that the case is actually getting cooked in the police station, and that is a stage before the charges are formally framed. That is a stage where there is scope for some kind of discretionary powers of the police, as well as some kind of corrupt practices coming into the picture.

But what about prosecutors? You know, because prosecutors are supposed to be officers of the court, you know, they’re not just supposed to be the mouthpiece of the law enforcement agencies. Why has it become the culture even among prosecutors to insist on custody?

Yeah, that’s a very good question. I don’t think I have a good answer to that. Prosecutors have almost become like a handmaiden of the police, whereas they’re supposed to be an independent agency, which is supposed to assess the case. And then on that basis, argue in court. I mean, I’ll give you a recent example, when the COVID struck and the Supreme Court passed his suo moto PIL order that HPCs should be constituted the high powered committee should be constituted in every state to identify categories of under trials and convicts who can be released on temporary bail or on emergency parole. And in state of state, I can say with some authority about the situation in Maharashtra when we work, when the high powered committee passed certain guidelines of who could be released on bail or on temporary parole, they had made a calculation because the population of the prisons in Maharashtra at that point we are talking of sometime between March to May 2020 was about 35,000. And the prison head of the department was very strongly of the view that for any kind of social distancing to take place, you need to reduce it by about 50%. And so they had identified categories of prisoners who could be released on bail, and bring down the prison population to 17,500. Odd. But ultimately, one found that only about 10,000 of them were released. So about seven and a half 1000, who could have been released when not released by the trial courts, because the final power of releasing on bail rests with the trial courts, the high powered committee can only give recommendations. Now when we were working at the ground level, one of the things that we found was that routinely, all these bail applications were being opposed by the PPs Office, the Public Prosecutor’s Office, whereas this was not based on merit, there was no need for them to oppose the bill because this was a temporary measure being taken due to an health pandemic, and emergency situation. And all the arms of the state should have been on the same page. Some of the magistrates informally did share with some of our team members off the record that if the state is issuing guidelines, why is one wing of the state opposing the bill and then it becomes difficult for a trial court magistrate to take a quick decision.

For some of our listeners who are not really familiar with the criminal justice system. Can you just explain the difference between a bailable and a non bailable offense?

So very simply put a bailable offense is is a case where bail is a matter of right. The judge or the magistrate in that case has to GRANT bail conditions may vary, but the bail has to be granted. Whereas in a non bailable case, it simply means that the whether to grant bail or not, is the discretion of the of the judge or the magistrate whose shoes hearing the matter. And in non bailable cases, the bail is granted based on the merits of the case. So, the lawyer of the accused has to apply for Bail in non bailable matters. Whereas in bailable matters, you don’t have to apply for bail, it should automatically be granted the moment the person is arrested and brought before the court. And if it’s a bailable offense, then the magistrate or the judge should immediately grant bail. Sometimes they do it a little later, but but they are supposed to grant bail in all these cases. So that’s the difference between a bailable and non bailable offense.

So in a non bailable offense, could you just describe how the system actually works? You know, how was bail granted? What are the conditions of bail, and who are the undertrial prisoners who are affected by most by this system.

So like I said, if you start with bailable offences the moment a person gets arrested produced in court, bail can be granted even before being produced in court by the police station itself. But otherwise, it once it comes to court, the court is supposed to grant bail. Now bail can be with various conditions. There are different types of bail, you have surety bail, whereby you have to produce a person who stands guarantee that in case this person does not attend court dates, or absconds or tampers with the evidence, or tries to influence the witnesses, the amount of the surety bail, suppose it’s a surety bail of 10,000 rupees, that amount can be confiscated from the surety. You know, so it’s like a it’s like a fine that that person will have to pay. In fact, there are even provisions in the law under which the surety can even get arrested for giving false assurances but that rarely happens. Then you have cash bail, where you have to deposit cash off the said amount in the court. And that amount can be taken back once the trial is over. Whether it ends in a conviction or acquittal is doesn’t matter. Once the trial is over the amount can be taken back by the person who has deposited the cash bail cash amount. And the third is what is known as release on personal recognizance bond, which is popularly known as PR bond, which essentially means that that court is releasing the person purely on that accused person’s word of honor. That, you know, he signs a bond saying that I promised to attend all court dates, I promised not to tamper with evidence, I promise not to influence witnesses. And I promise to be there till the end of the trial. And sometimes along with a personal bond, they might ask for, you know, bond of 10,000 or whatever. But that is notional, it’s not something that the person has to pay. Plus, there are also conditions that can be additional conditions that the court can pass. For example, attendance in police station, the court might say that you have to come to the police station every day, take the signature of the duty officer to the police station, or once a week or once a month. Sometimes we have also had some very interesting cases of bail conditions being granted, some of which which has also been challenged and overthrown by Superior Courts. Recently there was this case of this judge who was asking the accused to go and do some cleaning work in that village where he was coming from. So there are all kinds of conditions that could be passed. So it’s actually left to the court. What conditions it impose actually, this categorization of cash bail, surety bail personal bond is not something personal bond is there in the law, but otherwise cash bail surety bail. It’s not as if it’s specifically mentioned in the law. It’s a practice that has developed over the years, and courts are free to impose any conditions they wish, as long as they’re satisfied that the person being released will attend court dates that is the main thing as far as the bailable offences are concerned. Now in non bailable offences, the thing is that bail is not a matter of right. So the lawyer of the accused has to apply for bail. Based on the merits of the case the lawyer has to actually prove that prima facie there is not enough evidence to keep this person inside. And that is fought on merit by both sides the prosecutor’s office and the defense lawyer and based on the arguments of both parties. The court takes a final decision whether to grant bail or not with whatever conditions it thinks fit. If the bail is rejected at the lower court, the metric is going appeal first at the session’s court and the High Court and the Supreme Court. So this is how the whole bail thing works in practice.

So coming to the modes of bail that you described you know cash bail PR bond and surety, which is the mode that magistrates prefer.

So, in fact looks at the three modes that I mentioned about surety bail cash bail personal bond, the greatest preference is for surety bail because the magistrate or the judge wants to make sure that the person does not abscond. There is great pressure on the trial court magistrates and judges to ensure that case disposal happens at a good speed. And therefore, they do not want to have a whole bunch of cases which are marked as pending cases. And therefore, they have increasingly become very careful when it comes to granting bail. I mean, the whole maxim of justice Krishna Iyer of the Supreme Court that bail not jail should be the rule is something that we increasingly are finding not actually playing out at the ground level, because courts are very, very worried that if they grant person on bail, then there’s a chance that this person may not attend later court dates and then it will go on to the pile of pending cases, which affects their performance appraisal as well. And therefore, their greatest preference is for releasing on surety bail, depending on the kind of property that has been recovered or the kind of case that has been filed against the person, the amount of the surety can vary between anything between say even 5000 rupees to you know, a few lakh, then in some cases, the magistrates are willing to consider cash bail, but they are usually not the very serious offenses. And where, you know, cash bail usually would go up to maybe 10,15, 20, 25,000. And sometimes a little more than that, maybe up to 50,000 rupees. But generally speaking, even cash bail is something that is not very often granted. In fact, sometimes at the request of the lawyer, the magistrate may grant cash bail for a temporary period, and then ask the accused to find a surety. So they might say, we are giving you cash bail of one month, and within a month, you have to find a person who will stand surety for you. The third category, which is released on personal bond is again if you’d select a descending order, it’s the least often used provision in the law, magistrates are very reluctant to use personal bond because there is some kind of thinking that they have whether it is grounded in reality or not. One has to properly do a study to understand that, but their anecdotal data or evidence says that when people are released on personal bond, many of them do not come back to court on court dates and those cases remain pending. So unless they are very short that this person is a person with local roots, and therefore, many times when releasing persons on personal bond, they insist on ID proof documents and also residents proof documents to be produced. So that they are assured that this person will not abscond later on. So personal bond often is the one provision which I would say is an enabling provision for people who are poor for people who are migrants or people who do not have local surety is available. And therefore there is a provision in the law to allow for releasing a personal personal bond. But in reality, it is something that doesn’t get used. And therefore you will also find a good number of people in prison who have been granted bail, but they are still inside. Normally speaking, the moment bail is granted, people would move heaven and earth to ensure that they are able to go out on bail, they would sell their property, they would sell jewelry, they’ll take loans, they will mortgage their land, anything that is possible, particularly if they have some family support. But despite that, if you have a good number of people in any prison, who are granted bail, and still they are inside for months together, then it is a very sure sign that you know these are people who have absolutely no social supports. And in fact, there is a provision under Section 436 A of the CRPC. And that section says that if anybody has been granted bail and remains in sight for more than a week, then that person shall in fact very funny, it says May and shall be considered as indigent. Now, the moment you say May and shall it again leaves discretion with the magistrate and then that person should be released on personal bond here again, you find that it’s not happening all the time.

Yeah, that’s quite interesting, you know, because a lot of people think that, you know, the problem is money. You know, because in the US system, often the problem is money and it’s poverty, that is keeping people in prison. I mean, it didn’t mean system to in a sense, it may be poverty, but it’s not just about money. It’s also about your networks and your social capital. 

Absolutely, it’s social capital and your social supports, because in order to be able to find somebody who will stand guarantee for you, which means that you have some relationship with that person. And if it is a family member, they might be too poor, and that papers are not worth it. Because, you know, if it’s a surety bail of say 25,000 rupees, you have to produce papers to show that in the eventuality, you will be able to pay that amount, which means you have to show a salary slip, of course, basic documents like ID proof residents proof goes without saying, then they might ask for electricity bill copy, they might ask for a ration card, they might ask for, of course, your other card, everything is to the other card based or they might ask for income tax returns. So the court has to be satisfied that these documents are good enough for the bail to actually fructify. And a lot of people will not have these documents with them. And they may not have people around them friends or relatives who have those kinds of documents, or even if they have they’re willing to come and get involved in a court case, who wants to get involved in a court case in a country like India, where there is so much of you know, bad mounting of and rightly so about the situation of our courts in the justice system.

So if you can just tell us one efficacious reform that we can do in our legal system to reduce the proportion of under trials in our prisons,

I would say two things. I started off with those two, and end with those two. We have to improve the quality of legal aid services that we provide to people who are in custody. Right now what is being passed off as legal aid. It’s quite a sorry state of affairs. And that has got to do with the fact that the honorarium that is paid to legal aid lawyers is really a pittance. Let’s say for example, you take Maharashtra the honorarium that is paid to legal aid lawyer is 500 rupees per hearing for a non effective hearing, and 750 rupees per hearing for an effective hearing. Now, non effective hearing is where, on days when nothing happened, effective hearing is where some hearing took place, for a bail application. The amount is 500 rupees for one bail application in lower court. And I think in the higher court it is 750 or 1000 rupees. Now, if this is the kind of honorarium that you’re paying a legal aid lawyer, you know what to expect, you can only have a few highly public spirited lawyers who would come and provide legal aid without bothering about the money that is being paid. But for most people, this does not even cover the traveling cost. A lawyer has to go to court has to file papers, get photocopies of things done. And there are procedures whereby they can get reimbursement for all those kinds of expenses, photocopying and things of that sort. But again, there is so much paperwork and bureaucracy that is involved. Let me tell you about the bail procedure. For example, once you have filed a bail application, that 500 rupees that you’re supposed to get, you don’t get it immediately, you get it at the end of the trial, the trial might take five years, and you will get your 500 rupees after that five years are over and the trial is completed. So there are some really I don’t know, I don’t know what to say. It’s almost as if the system is designed to fail the appointment letters that are to go to the legal aid lawyers, once the lawyer has been appointed, it’s still being sent by post or by courier instead of being emailed for an underage child who needs legal aid. The application has to go by snail mail, from the prison authorities to the DLSA office. I don’t know when we’re talking so much about technology. Why, you know, we can’t use email and you know, other kinds of technological needs to kind of communicate between different wings of the institution. When a bail order is passed by the court, the prison authorities come to know about it only after the bail fracktifies. So if at any given point of time, if the courts or anybody wants to know how many people are in prison who have been granted bail, and are still inside, they have to physically go and ask the under trials who have been granted bail to find out that thing because prison authorities say we nobody sends us intimation. When bail is granted, the courts don’t a simple copy of the bail order could be emailed to the prison superintendent when bail is granted. So there are so many things that doesn’t require any kind of rocket science. The second one and is again, the one which I had mentioned earlier is bail reforms. We must engage in a serious exercise to look at how bail could be made more accessible to people and we could find non financial ways of Bill being granted. For example, can a local organization in that area come forward and provide some kind have moral guarantee, because you know, you can’t expect a voluntary organization to provide any kind of financial guarantee, or let’s say, a retired school teacher in that area, what you know, this whole concept of fit person, which exists when in the case of laws relating to children and women, that often custody is handed over to a fit person. So Can some concept like that cab be thought about. Also in the West, they’re also doing some kind of risk analysis, deciding whether to grant bail or not, there could be a set of parameters, which could aid the court in taking a decision. I’m not in favor of technology or AI taking over human decisions. But it could act like an indicator like suppose there are five factors to be looked at, you know, and on that basis, about a five three are looking good that the court can take a decision that No, I don’t even have to take a grant surety bail, I can just release this person on personal bond. So we have to engage in an exercise of bail reforms. And we have to improve the quality of legal aid services that we are providing. And that will only happen when we have a cadre of legal aid lawyers appointed on a full time basis, in my opinion, or you increase the Legal Aid honorarium so substantially that it becomes feasible for a public spirited lawyer to take up Legal Aid matters. I’m told that the NALSA has is now currently piloting a defense counsel system in a few districts in the in a few states. And I think that is the way to go. It’s the step in the right direction. If that does work out, then probably it will lead to some improvement in legal Aid services for undertrials.

This was my conversation with Professor Vijay Raghavan. And you’ve been listening to the Daksh podcast. This episode was hosted by me Leah Varghese. If you liked the show, don’t forget to follow or subscribe to us wherever you listen to your podcast so that you don’t miss an episode. We would love to hear from you. So do share your feedback either by dropping us a review or rating the podcast where podcasts apps allow you to talk about it on social media. We are using the hashtag Daksh podcast, it really helps get the word out there. Most of all, if you found some useful information that might help a friend or family member, share the episode with them. Especially thank you to our production team at made in India. Our production head and editor Joshua Thomas mixing and mastering Karthik Kulkarni and Project Supervisor Shawn Phantom. If you want to find out more about this topic, please have a look at the reading list in the episode description. And to get in touch visit our website DakshIndia.org that’s D A KSH India dot o RG Thank you for listening