In most states, jail is more the norm, not bail - Hindustan Times
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In most states, jail is more the norm, not bail

ByMaja Daruwala,
Feb 22, 2024 08:40 PM IST

With a nearly 70,000 inmate population, Bihar’s prisons have the largest number of undertrials in any state in India

Faced with a matter from Bihar (Rajanti Devi@Rajanti Kumari v. the Union Of India), where an application for anticipatory bail had not been decided for a year, the Supreme Court (SC) pressed all high courts to scrupulously follow its guidelines for giving bail and disposing applications swiftly, within two weeks if possible. These exhortations are useful reminders of what “should be” and what really “is” the ground reality.

Prisons are meant to hold the convicted, not punish with incarceration those who have not yet been properly tried. (HT File Photo) PREMIUM
Prisons are meant to hold the convicted, not punish with incarceration those who have not yet been properly tried. (HT File Photo)

Prisons are meant to hold the convicted, not punish with incarceration those who have not yet been properly tried. However, Prison Statistics of India 2022 say 74% or four lakh people in India’s 1,330 prisons are “undertrials” – people who have been arrested, are under remand or awaiting investigation or trial to be over. This is up from 66% a decade ago.

Delays in deciding and reluctance to grant or ability to afford bail directly contribute to overcrowding in jails. On average in 25 states, prisons run at more than 100% capacity. In 19 of them, undertrials account for more than 70% of all inmates. The national average for overcrowding runs at 131%, a significant increase from 112% a decade ago. Not only is this population growing, but the prison time of undertrials is more than ever before. In 2012, 22% of them spent between one and five years in confinement; a decade later, despite targeted initiatives aimed at releasing undertrials, the percentage has risen to 28%.

In Bihar, the state which prompted the latest exhortation from the SC, prisons are operating at an occupancy rate of 135%. In 13 of its 59 prisons, occupancy is between 200% and over 400%, 25 have between 100%-200%. Only seven of the 31 district prisons have less than 100% and two of the eight central prisons have less than 100% occupancy. Of the two women’s prisons, one has 123% occupancy.

With a nearly 70,000 inmate population, Bihar’s prisons have the largest number of undertrials in any state in India. In 46 prisons, undertrials make up over 90% of all inmates. To bring accommodation to no more than 100%, Bihar will have to release at least 32% of its undertrials. For instance, Jamui’s district prison, which holds more than four times the numbers it should be holding, will have to release 82% of its inmates.

Sadly, Bihar is no exception.

To address the issue of unfair pretrial incarceration and consequent overcrowding in prisons, the SC in Re-Inhuman conditions in 1382 prisons (2015) directed the National Legal Services Authority (NALSA) along with the ministry of home affairs and State Legal Services Authorities (SLSAs) to form Undertrial Review Committees (UTRC). The committees were to meet quarterly. Since then, based on 14 criteria, undertrials identified by UTRCs under Section 436A of the Criminal Procedure Code (CrPC) were to be identified and recommended for release annually. But committees meet less frequently than mandated, restrict their recommendations to a few categories and their recommendations are often resisted by the bench. Of over 1,000 undertrials identified nationally for early release in 2022 under Section 436A of CrPc, only 537 (36%) were released. An year earlier, 1,491 were identified but just 591 (39%) released. In Bihar, of just 59 prisoners identified as eligible for release, only 48 were released. Accelerated campaigns such as “Release_UTRC@75” managed to effect a temporary uptick in these numbers. The effect of intensely concentrated efforts for a limited period is lost as officials go back to business as usual.

The chances for women undertrials seem near non-existent. The NALSA’s guideline recommends that women prisoners be considered for release irrespective of their alleged offence. However, of the over 2,500 women undertrials across Bihar’s prisons, only one was identified as eligible for release in 2022, but she was not released. Between 2016 and 2022, out of two women undertrials identified as eligible for release, only one has been released in 2021. Nationally, only 74 of the 178 women undertrials have been released during this period. As of December 2022, about 12% (347) women undertrials in Bihar have spent between one to five years in prison.

“Bail not jail” is the oft repeated nostrum of the SC and high courts and a great many do manage to get bail. But it is not enough. In 2022, of over 53 lakh arrests in IPC and SLL crimes across India, 28% (1,470,848 undertrials and 52,320 convicts) prisoners were released on bail. Too many factors collude to prevent the remedy coming to the aid of most of these hapless undertrials: These include growing delays and pendency at court, the inability to afford adequate legal representation, lack of access to legal aid, the challenge of meeting heavy bond amounts or providing local sureties, and ignorance of procedure and law among undertrials. At the beginning of 2023, 5,380 undertrials who’d been given bail remained in custody nationwide. A shortage of judges and consequently, a slow case clearance rate add to the problem.

In January 2024, the department of justice put judge vacancies in Bihar at 34% in the high court and about 33% in the subordinate courts. This coupled with case pendency – over six lakh in the HC and over 1.3 million in the subordinate courts – will lead to crowding of prisons.

Even as the authorities struggle to reduce numbers in pretrial detention, the newly minted Bharatiya Nyaya Sanhita Bill, 2023 with increased periods of police custody for 41 offences, compulsory minimum punishment in 25 offences, and enhanced fines promises to swell the number of incarcerated. This hollows out the notion of prisons becoming places for “rehabilitation and correction”, as promised in the Model Prison Rules 2016.

Maja Daruwala is chief editor and Arshi Showkat is a researcher with India Justice Report. The views expressed are personal

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