77 percent of India’s prisoners are undertrials: NCRB

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More than three-fourths of India’s jail inmates are undertrial prisoners, according to data released by the National Crime Records Bureau (NCRB).

Of the 554,034 prisoners, 427,165, or 77 percent, were undertrials in 2021. This was a 14.9 percent increase from 371,848 undertrials in prison in 2020.

District jails had the highest share of undertrials, accounting for 51.4 percent of the total, followed by central jails (36.2 percent) and sub-jails (10.4 percent).

Not only is the number of undertrials increasing, the capacity of jails to hold prisoners has also been exceeded. According to senior advocate Colin Gonsalves, the number of undertrials in jail can be reduced if the authorities follow the order of the country’s top court.

“The Supreme Court has made it clear that unless a crime is devious and attracts a punishment of seven years or more, no arrest is to be made. But this is being ignored and the police across the country continue to make arrests based on flimsy charges,” said Gonsalves. “Enforcing this order of the court in itself would reduce the number of prisoners in the country by half.”

Pending cases

The pendency of cases is a key reason for undertrials remaining in prison. With more than 14.4 million cases pending at the end of 2021, Indian courts had an overall pendency percentage of 91.2 during the year.

“The delay on the part of the judiciary is one of the main factors for the rising number of undertrials in the country. A large number of cases have been kept pending for a long time,” said Sankar Sen, former director of the National Police Academy.

The apex court recently suggested that the Union government introduce a law to streamline the grant of bail but experts are sceptical about the impact of such legislation.

“There are enough bail provisions already existing in the CrPC (Code of Criminal Procedure). Most problems that undertrials are facing today are borne out of poverty, lack of proper legal help, and insensitivity within the judiciary. Making a new bail act without addressing these problems won’t do much good,” said Justice K Chandru, a former judge of the Madras High Court.

With 59,577 such prisoners, Bihar reported the second-highest number of undertrials in the country, followed by Maharashtra with 31,752.

The proportion of undertrials to the total number of prisoners was the highest in Bihar with 89.1 percent, followed by West Bengal at 87.6 percent, and Odisha with 87.3 percent.

As many as 302,917 undertrial prisoners (70.9 percent of the total) were confined for up to one year. Further, 56,233 such prisoners (13.2 percent) had been kept in confinement for one to two years, followed by 32,492 (7.6 percent) being kept for two to three years.

Meanwhile, 24,033 undertrials have languished in jail for three to five years, as of 2021, while 11,490 prisoners had already spent more than five years in confinement without being convicted.

Curse of poverty

Being poor can be a curse for undertrial prisoners, experts said.

“There are many instances where the poor are not able to afford the conditions set for bail. This is on top of them already being unable to afford a good lawyer. So they are often forced to remain in prison without availing bail,” said Justice Chandru. “The legal aid services authority, which is supposed to render legal aid to the poor, has become a sham and nominal.”

Sen, a retired IPS officer, agreed there is a lack of proper legal aid given to undertrial prisoners.

“Although the arrangement for providing legal aid is there, lawyers do not take much interest in such cases because there is not much pay,” he said.

While the country’s jails are overwhelmingly populated by prisoners awaiting trial, they are also overcrowded, with an overall prison occupancy rate of 130.2 percent.

Data shows that the highest occupancy rate was in the district jails (155.4 percent), which also had the most number of undertrial prisoners. Central and sub-jails came second and third on the chart.

“There is a natural relation between the high number of undertrial prisoners in India and the high occupancy rate of prisons in most states. If we simply follow the existing provisions for bail and court directives, we will be able to reduce the number of undertrials, and along with it, the occupancy rate of prisons,” said Gonsalves.

Indian prisons have the capacity for 425,609 inmates, which is 128,425 short of the requirement based on the number of prisoners in the country.