Not Guilty But In Jail: The best hope for India’s undertrial prisoners – district-level undertrial review committees – are failing

Overall, 5.8 percent of the total undertrial population was released during the 2022 campaign.

A staggering 77 percent of the entire prison population is made up of “undertrials” – people awaiting the completion of investigation or trial, or simply too poor to secure bail or reach effective legal representation. Going by United Nations Office on Drugs and Crime’s (UNODC) standards, 30 percent of our prisons are extremely overcrowded and 54 percent run above 100 percent capacity.

In response to this state of affairs in  2013,  the Supreme Court in “Re: Inhuman Conditions in 1382 Prisons (W.P. (Civil) No. 406/2013)”, set up a special vehicle – Undertrial Review Committees (URTC) at the district level – to identify and recommend inmates who could be quickly released on bail.

Who’ll Review The Reviewers?

Activated in 2015, UTRCs were to meet every quarter and limited to reviewing eligible cases under Section 436-A CrPC and those unable to furnish surety for bail. Later, this expanded to include 14 categories of prisoners. Then, during the pandemic, to hasten decongestion the review committees were required to meet once a week. A study of 19  states recorded patchy compliance of the court’s orders - a phenomenon that is too common now to be remarkable or noteworthy.

During the pandemic the Supreme Court also ordered the setting up of High Powered Committees tasked with quickly decongesting prisons. But since those times the prison occupancy has steadily gone up from 120 percent in 2019 to 130 percent in 2021.

Contributing factors include over-enthusiasm to arrest: 2021 saw seven lakh more arrests than 2020. The other factors are: Mounting backlogs of criminal matters up from 1.35 crore in 2019  to 1.88 crore in 2022; uncertain and patchy availability of competent representation; and overall the poverty and powerlessness of most who are in conflict with the law. 65 percent of all undertrials are either illiterate or semi-literate.

Undertrials Only Sparingly Released

National Legal Services Authority’s (NALSA) data shows that between January and December 2021, 665 DLSAs (District Legal Services Authorities) across the country convened 10,028 Undertrial Review Committee (UTRC) meetings. In 26 states/UTs  they met at least once in a quarter. Only Sikkim, with 13 meetings in a quarter, met once a week, closely followed by Himachal Pradesh (12 meetings). Dadra & Nagar Haveli and Daman & Diu, Lakshadweep and Mizoram, though, did not convene a single meeting throughout the year.

Sikkim, with 452 inmates, conducted the most meetings; it recommended only two undertrials for release against which only one was released. Nationally, 42,486 prisoners were recommended for release, but only 16,743 or 39 percent were actually released, according to NALSA. Goa and Jammu & Kashmir released all those recommended for release. Thirteen states/UTs released more than 50 percent while five states released less than 20 percent.

Between July and August 2022,as part of NALSA’s nationwide campaign to identify undertrial prisoners eligible for release, 24,789 prisoners were released out of the nearly 48,000 recommended. Overall, 5.8 percent of the total undertrial population was released during the 2022 campaign which resulted in the reduction of the overall occupancy rates by only 5.7 percentage points (from 130 percent to 124.3 percent) in the country. Uttar Pradesh (8,409) released the highest  number of prisoners followed by West Bengal (2,107), Maharashtra (1,717) and Punjab (1,531).

An Inadequate Justice System

But how could it be otherwise? Structural inadequacies plague each sub-system which is  charged with justice delivery. Judge vacancies have stood at 29.8 percent (High Courts) and 21.7 percent (Subordinate Courts) and remain far from the 50 judges per million recommended 35 years ago. None of this absolves the system from their share of the blame. The shortfalls are well known and have hung around unaddressed for decades.

Even in the absence of structural reform pathways, solutions – even if partial - do exist. They lie in obedience to the law and dispassionate use of discretion. Illustratively, the courts have repeatedly directed the police to use arrest as a last resort rather than a first knee-jerk reaction to every big or small incident. So too, the apex court has repeatedly detailed  careful processes to be followed during arrest which if disobeyed will vitiate police action.

Magistrates are schooled that bail not jail is the norm but too often feel compelled to remand or refuse bail and furlough at the invitation of the police. Legal aid which should be available on the instant at the very first encounter with law is too often wrapped up in the tangled skein of bureaucracy, written applications, and overtly casual representation.

Neither caprice nor abuse of power nor breach of statutory duty attract instant reckoning for the wrongdoer. The consequences fall unfailingly on its victim. Repairing these dysfunctions of practice - how it may be brought about is an issue for immediate attention - could contribute significantly to lowering the burden on prisons and more importantly in protecting everyone’s civil liberties and the idea of rule of law. But none of it will materialise if there is no incentive to bend toward a virtuous circle or disincentive to move away from the repugnant.

Maja Daruwala is Chief Editor, India Justice Report. Views are personal and do not represent the stand of the publication.