Too many undertrials in jails raise

questions
Prisons are overcrowded not because they are
full of wicked criminals. But because two-thirds
of people in jail are undertrial prisoners

PREMIUM

The need to stem the undertrial trend has led to the making of many laws, schemes, and
institutions(SHUTTERSTOCK)

There are 1,319 prisons across the country. At the end of 2021,
overall occupancy stood at over 130% with one in four jails
recording occupancy rates of 150% or higher and some jails totting
up overcrowding of 400%. Prisons are overcrowded not because
they are full of wicked criminals. But because two-thirds of people
in jail are undertrial prisoners — those awaiting the completion of
investigations or trial, people who may or may not have done
anything wrong but are made to hang around while the process
around them putters on.

Undertrials constitute 77% or three times the number of convicts.

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 Prison Statistics India 2021 records that out of 5,54,034 prisoners,
68% belong to Scheduled Castes, Scheduled Tribes, and Other
Backward Classes.

Responding to the obvious injustice of the situation, the National

Legal Services Authority on September 18 relaunched a special
nationwide campaign to reduce the number of undertrial prisoners.
At the launch, Justice Sanjay Kishan Kaul exhorted the Supreme
Court (SC)’s own special creation, the Undertrial Review
Committees to urgently identify undertrial prisoners eligible for bail
and pressed magistrates to modify conditions so that liberty rather
than pre-trial detention is the norm.

In the same vein, the Union home ministry recently framed new
guidelines and urged states and Union Territories to support
economically weaker prisoners who are behind bars only because
they have no means to pay their fines or because they cannot
afford to secure bail for their release. With some Central funds
behind it, a standard operating procedure named “Support for Poor
Prisoners” has been instituted.

Earlier, during the Covid-19 pandemic, the need to create physical

distance in cramped jails prompted the SC to direct the setting up
of high-powered committees to identify prisoners who could be
released even temporarily on interim bail and emergency paroles.
Undertrial Review Committees (UTRCs) were ordered to double
efforts and meet weekly instead of monthly. By the end of the first
wave of the pandemic, more than 61,000 prisoners were released
and occupancy was down by just over 15%.

However, by the second Covid wave in 2021, prison administrations

were once again struggling with too many inmates. NCRB’s Crime in

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 India 2021 reveals that police had made seven lakh more arrests
than in the previous year. Moreover, a study of 19 states recorded
patchy compliance with UTRC mandates. Overall prison occupancy
rates that had fallen to 118.5% in 2020 had shot up to 130% plus by
2021.

It took a special campaign between July and August 2022 by the

National Legal Aid Authority to get another nearly 37,000 undertrial
prisoners released and bring the overcrowding down from 130% in
2021 to 124.3%. In a rules-based system like ours, punishment is
expected to come at the very end of a strict fair trial process. Yet
today, 77% of the prison population are undertrials, indicating that
the loss of liberty is becoming the default position.

The need to stem this trend has led to the making of many laws,
schemes, and institutions. The National Legal Aid Authority has now
augmented its panel lawyer-based representation with new offices
manned by defence counsels providing dedicated free legal
representation. Magistrates are constantly urged that “bail, not jail”
is the dictum they must follow in addition to having powers under
the Probation of Offenders Act, 1958 to let off, under supervision,
first-time offenders charged with lesser crimes with a warning to be
of good conduct. Mandatory bail provisions under the Code of
Criminal Procedure are also available to prevent undertrials from
remaining in prison for prolonged periods. Technology-based tools
such as electronic transmission of bail orders from the court
directly to prisons have recently been brought in to prevent delays
in paper-based procedures.

Yet, the problem persists and at 4.3 lakhs (2021), the number of
undertrials has doubled since 2010. The Special UTRC Campaign
2023 signals a renewed determination to tackle the problem.

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 Maja Daruwala is chief editor and Nayanika Singhal is senior
researcher with India Justice Report. The views expressed are
personal

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