Three Things India Can Do To Reduce Undertrial Prisoner Population
After the attention drawn by President Droupadi Murmu and Chief Justice of India (CJI) D.Y. Chandrachud to the issue of the undertrial prison population in India, we have to decide on whether to focus on building more prisons or make serious attempts to decongest the existing ones. Although speedy trial and fair trial form the bedrock of our justice dispensation system, it is heartbreaking that the undertrials constitute 77.1% of the total prison population, and the majority belong to the Scheduled Castes, Scheduled Tribes and Other Backward Classes (2,83,535 out of a total 4,27,165, according to NCRB Prison Statistics India Report, 2021).
The onus for the sad state of affairs is scattered across the entire system. Unwarranted arrests and excruciatingly slow-paced investigation by the police, exercise of the power of remand in a mechanical manner by the magistrates and the poor implementation of the legal aid framework top the list of causes for pre-trial detention. The measures required to be undertaken on the ground level to alleviate the concerns of the growing undertrial population can broadly be focussed in three areas.
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Justification-based arrest
First and foremost, there is a need for re-orientation of the approach of the police personnel towards the exercise of power to arrest. Time and again the constitutional courts are faced with cases where the arrest is made in violation of the ‘check-list’ mandated by the Supreme Court in the landmark case of Arnesh Kumar vs State of Bihar (2014).
Moreover, in cases where notice of appearance under Section 41A of CrPC is issued, it is soon followed by arrest irrespective of compliance with the notice by the accused thereby, defeating the purpose of the provision. Section 41A was introduced in 2009 as a statutory safeguard against unnecessary arrests in offences punishable by up to seven years of imprisonment. It provides that where the police officer decides not to arrest, he shall issue a notice directing the accused to appear before him to cooperate in the investigation. The attitude of ‘first arrest, then investigate’ must be changed especially in cases covered under the directions in Arnesh Kumar.
The focus should be shifted from curtailing the liberty of the accused at the first instance to securing the presence of the accused by other means (summons, warrants, Section 41A CrPC). The Supreme Court guidelines in the Arnesh Kumar should be strictly complied with and where an arrest is made, it should be justified by cogent reasons. A uniform proforma for notice under Section 41A will also act as a substantial procedural check on unnecessary arrests.
Simultaneously, it is about time to cast off the habit of custodial investigation. Post-arrest, the police should seek further custody of the accused person only when it is essential for a fair and efficient investigation and not as a matter of routine.
Representational image. Photo: PTI
Proactive magistrates and trial judges
The magistrate is the first point of contact for the accused after arrest, and thus, plays a significant role in preventing further curtailment of their liberty. This interaction primarily occurs at the stage of the first production and during subsequent remand proceedings. Once the trial commences, the proceedings are before the competent trial court.
At the time of the first production, the magistrate is obligated to review the legality of the arrest before adjudicating on the question of remand. It is important for the magistrate to ensure that the arrest per se was not illegal or unnecessary and that the arrest memo is not bereft of procedural compliance. Such magisterial scrutiny of the arrest acts as an institutional oversight measure deterring police from making unwarranted arrests. Once, the magistrate is satisfied with the justifiability of the arrest, the issue of remand becomes critical.
As the former CJI U.U. Lalit rightly pointed out, the power to grant remand is exercised in a mechanical manner. This practice needs to be condemned and corrected, as it is at comes the cost of the accused’s liberty. Even a single day in jail affects lives adversely. The power of remand must thus be viewed as a sacrosanct judicial function (which it is) rather than a mechanical one.
Where a great proportion of undertrials are poorly educated or illiterate, guiding them through the process becomes the duty of the magistrates and judges. At the time of first production itself, the magistrate inter alia should ensure that the accused is duly represented in the remand proceeding and is aware of his right to apply for bail for securing his liberty.
Further, in most bail hearings, the prosecution seeks the custody of the accused citing an ongoing investigation. However, it is not a common sight in the courts where a judge pulls up the investigation agency about the progress of the investigation for which the custody of the accused is being requested.
Such and other issues like inordinate delay in an investigation should be inquired into by the district judges and independent judicial mind be applied on whether the custody of the accused is absolutely necessary for a fair and smooth investigation. Moreover, many court orders denying bail are not reasoned and prima facie appear to be following a standard format.
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The reluctance of the trial judges to grant bail due to fear of being ‘targeted’ was highlighted recently by the CJI. This mechanical exercise of the power of remand and the reluctant approach to granting bail jointly contribute to the rise in the number of undertrial populations. Therefore, the need of the hour is proactive magistracy and trial judges who uphold the fundamental right of liberty whilst maintaining a balance with the core postulates of a fair trial. This would prevent the need for the undertrial prisoners to approach the constitutional courts seeking liberty.
Coming to the delay in the trial, it is a reality that years go by before charges are framed in a case and even after the framing of charges, the prosecution witnesses are not examined for months. In a recent case, the Punjab and Haryana high court granted regular bail to the accused as several adjournments were sought after the framing of charges and only one witness was examined while the accused was in jail for more than two years. Such delays can be avoided if the power to grant adjournments is exercised sparingly by the trial courts.
Bail reforms
Even though the statutory remedy to secure liberty exists in the form of bail, it is rendered ineffective in three instances: first, when the accused is not represented by a legal counsel and is unacquainted with his right to apply for bail owing to poor legal literacy; second, when the accused is represented but bail is rejected in a mechanical manner without a reasoned order; third, when accused is represented by a legal counsel and succeeds in securing bail but is unable to fulfil the bail conditions.
The first scenario can be remedied by strengthening the implementation of a legal aid scheme in the country where various functionaries like police officers, magistrates, and prison authorities are obligated to inform and provide the accused with legal aid. Additionally, it also becomes imperative that the legal aid counsels representing the accused have the requisite experience and knowledge and are diligent in the discharge of their duties.
As discussed above, the second scenario can be avoided altogether by a strong and active district judiciary that adjudicates upon the bail applications on sound judicial principles. The guidelines laid down by the Supreme Court in Satender Kumar Antil vs CBI (2022) for granting bail will positively aid the magistrates and trial judges.
Also read: Explained: The Law of Arrest, Remand and Bail
The third scenario is extremely problematic and disappointing as the person who has got bail on merits is unable to get out of prison due to economic constraints. Furnishing the bond amount or arranging a surety becomes a hurdle for someone who belongs at the fringes of society.
Taking notice of the issue, the Supreme Court in Sonadhar vs The State of Chattisgarh (2022) has directed the jail authorities to submit details regarding those undertrial prisoners who have been granted bail but continue to remain in custody. The said data would consequently help the National Legal Services Authority of India (NALSA) to frame a scheme to assist such prisoners. It is high time to introduce in the statutes an alternative to monetary bail which in a way is penalising poverty. The courts should be given the discretion to grant non-monetary bail depending on the nature of the offence and the paying capacity of the accused along with the other relevant factors depending on the circumstance of each case.
Another statutory remedy that seems underused is Section 436A of CrPC, which enables the release of the undertrial on bail on serving half of the maximum term prescribed for the offence. The inability to get access to legal advice restricts the accused from moving bail applications seeking entitlement under Section 436A. This is reflected in the fact that out of a total of 1,491 undertrial prisoners eligible for release under Section 436A, only 591 could secure freedom in 2021, according to NCRB's 2021 report.
Also read: The Burgeoning Share of Undertrial Prisoners in India’s Jails
Conclusion
In Re: Policy Strategy for Grant of Bail (2022), the Supreme Court has advocated for the release of undertrial prisoners either by upholding the principle of presumption of innocence and the right to a speedy trial or allowing the liberty to be bargained with the admission of guilt through the process of plea bargaining.
The latter approach is problematic when viewed in the context of a certain number of undertrials who though are entitled to bail but are unable to buy their way out of prison due to illiteracy and poverty. The consent of the accused who opts for plea bargaining and accepts the label of a ‘convict’ because he cannot meet the conditions of bail, cannot be said to be free. It is nothing but the mere helplessness of such a person to secure liberty. Such concerns render our criminal justice system hollow and call for immediate action.
The issue of undertrials languishing in jails cannot be traced back to a single cause. It is a collective failure of the system which requires collective, corrective and timely efforts. The executive, legislature and judiciary have to come together to address the challenges. Measures like FASTER and the recent Supreme Court announcement regarding the hearing of 10 bail petitions every day, though welcoming, fail to touch even the tip of the iceberg.
Unless the reforms are taken up at the ground level, the share of undertrials in the prisons would keep multiplying. Instead of piecemeal reforms, an overhaul of the system is required. Along with holistic statutory reforms, the procedural network of the criminal justice system needs strengthening. The key functionaries of the administration need to re-orient their approach and perform their duties with an aim to uphold the constitutional principles of liberty.
Anupama Arigala is an advocate and holds B.A., LL.B (Hons.) from National Law University, Delhi.
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