Bailing out undertrials

The institutional abuse they suffer must be addressed

The 268th report of the Law Commission has recommended that the government amend the bail provisions of the Criminal Procedure Code to facilitate the early release of undertrials. Those who had completed one-third of the maximum sentence for offences up to seven years should be released, the report said, and those who were awaiting trial for offences punishable with imprisonment of more than seven years should be let out on bail if they had completed half their sentence. These recommendations extend a 2014 Supreme Court order to judicial officers to identify and release undertrial prisoners who have served half their sentence prescribed under law, except those whose offences attract the death penalty. The apex court had set a deadline of two months for this exercise, with no noticeable impact on the appalling overcrowding in India’s over 1,000 prisons. Some 6,000 prisoners were released by district-level review committees set up by the apex court, which accounted for less than 1 per cent of the undertrial prisoner population. Both diktats, less than three years apart, highlight a flaw in the Indian judicial system that is just as serious as the more regularly quoted statistic of the staggering backlog of cases. 

The burgeoning undertrial population in prisons is one of the many unacknowledged and festering social problems that rarely attracts much administrative attention. The over 200,000 undertrials crowding Indian prisons, accounting for as much as 65 per cent of the prison population, are a grim reflection of both the rank inefficiency of the judicial process and India’s chronic poverty that make it impossible for many to afford bail. The bizarre aspect of this prison overpopulation is that it is unnecessary. As the Law Commission pointed out, “Over 60 per cent of arrests were unnecessary and such arrests accounted for 42.3 per cent of jail expenditure.” Pruning this list would be not only humane but also enable the authorities to improve the sub-human conditions in which prisoners are housed. An IndiaSpend study says a quarter of undertrials in Indian prisons between 2010 and 2014 had been in jail for a year. But horrific stories of people languishing in jail for decades, sometimes for minor infractions and often without trial, have become commonplace. 

This is not just a question of numbers alone, but of social equity too. Over 70 per cent of undertrials are illiterate, semi-literate or belong to socially marginalised groups. The institutional alienation of such people – ironically, many innocents evolve into hardened criminals during prolonged prison sojourns – is surely at odds with individual rights guaranteed under the Constitution. Ironically, the exercise does not even require legal changes. A procedural mandate for releasing undertrials who have served more than half their maximum imprisonment by a court on a personal bond, with or without sureties, has been in the Criminal Procedure Code for decades. It has rarely been used because, according to Amnesty International, it is often mistaken for an offence under the Indian Penal Code. This fact alone underlines the urgent need for the judiciary to infuse life into defunct undertrial review committees and speed up the process of addressing the crisis in our prisons.