Frozen laws, forgotten lives: The Undertrial Crisis in India's Legal Delay

Parth Anand, Manvi Bansal

INTRODUCTION

In India, 75.8% percent of the total prison population constitutes as undertrial prisoners. As per the data of the National Crime Records Bureau ‘NCRB’ 14.6% of undertrials had spent 1-2 years, 7.8% 2-3 years, 6% 3-5 years, and 2.6% longer than five years. Recently, the Union Home Minister had underscored the necessity of hastening the release of undertrial convicts who have completed over one-third of their maximum sentence by 26th November (Constitution Day).

Undertrial prisoners are presumed to be innocent and are kept in custody to ensure a free and fair trial. The new features provided by Section 479 of BNSS includes a provision for release of first-time offenders in case they have undergone imprisonment of duration extending upto one third of the maximum length of sentence specified for such crime.  Furthermore, a new provision imposed by means of sub section 2 is that an under-trial prisoner shall not be released on bail if an investigation, inquiry or trial in more than crime or in several instances is proceeding against him. While Section 479 of the BNSS allows conditional release to some undertrial detainees, its restricted reach excludes individuals facing repeated cases or repeat allegations, therefore failing to solve the greater challenge of prolonged pre-trial imprisonment.

THE INEFFECTIVENESS OF THE CRIMINAL JUSTICE SYSTEM

The Prison Statistics India, 2022 report released by NCRB mention that the number of undertrials in India has increased by 40.7% during 2017. Furthermore, the report also mentions that 65.2% of undertrials were either illiterate (26.2%) or had obtained education up to Class X (39.2%). 20.9% of undertrial inmates were SCs, whereas 9.3% were STs.

The undertrial prisoners do not have access to legal aid and the arbitrary and indiscriminate arrests made by the police are an equally concerning issue. The issue is further compounded by the ineffectiveness of the bail system, in which undertrial detainees fail to comply with the bail application in terms of supplying a surety, resulting in their suffering in jail.

The Commonwealth Human Rights Initiative’s Report, “Hope Behind Bars” states that only 0.75 Rs is the per capita spending on legal aid in India. According to the research, there is a 14 percent underutilization of money granted to state legal services authority. In states such as Bihar, Sikkim, and Uttarakhand, less than half of allotted money are used. Furthermore, only 339 of the 520 district legal service authorities (DLSAs) have dedicated full-time secretaries in charge of supervising the delivery of legal aid services.

The above-mentioned problems coupled with the wilful abstinence of skilled lawyers from providing legal aid leads to a compromise in the quality of legal aid. Inadequate legal representation carries extensive consequences, creating unjust disparities in accessing justice that primarily benefit affluent individuals, while depriving the underprivileged of adequate representation. This leads to disproportionate harm inflicted upon vulnerable groups, resulting in increased instances of wrongful convictions and severe treatment.

THE LACK OF ACCESS TO LEGAL AID

The majority of the undertrial prisoners are unable to access legal aid due to the lack of awareness of free legal aid, lack of infrastructure and lack of requisite technology and resources. It is also pertinent to question the quality of legal aid provided and the repercussions of poor quality of legal aid. Former CJI of India Sharad Arvind Bobde at the 17th All India Meet of State Legal Service Authorities stated that only 0.5 % of the population gets legal aid whereas 80 % are entitled for it.

The legal aid services in India face a paucity of skilled lawyers due to their non availability or wilful abstinence. There are many reasons for the wilful abstinence of skilled lawyers from providing legal aid. Primary reasons concern low honorarium and the delay in processing payments. The low honorarium, combined with a fee cap that does not account for the number of hearings in the case, drives legal aid providers to focus more on private practise in order to meet their ends. As a result, the quality of legal aid provided is compromised and undertrial prisoners are not provided with adequate representation.

The substandard legal representation has far-reaching repercussions. It generates inequitable access to justice, favouring the wealthy while leaving the poor without proper representation. The vulnerable groups are disproportionately harmed, with greater incidences of wrongful convictions and harsh treatment. According to the 2015 NCRB study, Dalits, Adivasis, and Muslims account for 55% of undertrial prisoners in India, which is much greater than their representation in the entire population. According to the 2011 Census, these three communities account for only 39% of India's overall population. As a result, there is a notable gap in the representation of these marginalised groups in the undertrial prison population relative to their population share in the country.

THE INEFFICIENCIES IN THE SYSTEM OF BAIL

The Supreme Court recently in the case of Satender Kumar Antil vs Central Bureau Of Investigation stated that the absence of a comprehensive law governing the grant of bail was causing confusion and delays in the administration of justice. The court recommended that bail laws be drafted along the lines of the United Kingdom's Bail Act. The Bail Act of the United Kingdom takes into account a number of factors, including the level of undertrial prison population, the granting of bail both before and after conviction, issues of bail violation, and the acceptance of the right to access bail.

However, the forming of a comprehensive bail act is not going to solve the problem of the high proportion of undertrial prisoners suffering in jail if indiscriminate and arbitrary arrest continue. It is pertinent to note that the socio-economic conditions of the undertrials need to be taken into consideration by the court. The proportion of members of the Scheduled Castes (SC) and Scheduled Tribes (ST) in Indian prisons is higher than their representation in the general population. Despite constituting 24% of India's population, SC and ST people make up 34% of the prison population. This suggests that these marginalised communities are over-represented in the prison system in comparison to their share of the general population.

We contend that rather than implementing incremental adjustments, a comprehensive system transformation is required. In addition to substantial statutory improvements, the criminal justice system's procedural structure must be improved. It is critical that the administration's main stakeholders reorient their approach and carefully fulfil their responsibilities, with the primary goal of defending the constitutional ideals of individual liberty.

VULNERABLE COMMUNITIES & THE NON-AVAILABILITY OF BAIL

The substantial prevalence of marginalised caste groups in jails as undertrial prisoners can be related to the socioeconomic issues such as caste stereotypes and disproportionate policing of specific communities. When combined with poverty, the financial burden of legal proceedings, and the poor quality of free legal assistance, these factors reinforce social inequalities within jails, replicating societal imbalances. Furthermore, the harsh treatment that they receive as undertrials is a clear violation of their rights.

According to a 2017 report by the National Campaign for Dalit Human Rights (NCDHR), there were numerous incidents of torture and mistreatment of undertrial prisoners from Scheduled Tribes and Dalit communities in various Indian states. According to the report, these prisoners were subjected to a variety of physical and psychological abuse, including beatings, torture, and sexual assault.

An individual's financial resources are important while pursuing a bail application. The procedure of securing bail is complex, necessitating the requirement for skilful lawyers. As previously argued, the quality of legal aid offered to undertrial detainees falls short of the required criteria of adequate representation as there is wilful abstinence of skilled lawyers and infrastructural issues. As a result, in order to obtain adequate representation, an individual must possess a solid financial backing. The Planning Commission shows that 45.3% and 24.1% of Schedule Tribes are below the poverty line in rural areas urban areas respectively. Hence Schedule Tribes do not have a strong financial backing to afford a skilful lawyer for adequate representation.

This leads us to the problem of producing a surety by the individual for completing the process of obtaining bail. It is logical to deduce that even if a Schedule Tribe is granted bail as an undertrial prisoner, the clause requiring them to sign a bond and furnish a surety impedes their release. As mentioned earlier the tribal community does not possess a strong financial backing and hence producing a surety becomes a significant problem.

The Supreme Court in the case of Gopishetty Harikrishna vs. The State of Andhra Pradesh stated that a corrective mechanism needs to be put in place as people who have been granted bail but are unable to fill out bail bonds or show surety before the court, preventing them from being released from prison. I suggest that the ruling of the Delhi High Court in the case of Azad Khan vs State (NCT of Delhi) where the High Court modified the condition of the bail bond regarding the producing of a surety due to the financial position of the accused should be implemented in required cases.

CONCLUSION

The Supreme Court has been vocal about the rights of undertrial detainees. In the recent judgment of In Re-Inhuman Conditions in 1382 Prisons, the Supreme Court took a progressive stand on the treatment of undertrials and said that all states must effectively implement Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The Court stated that governments must take a holistic approach to prison issues, taking into account the requirement for staffing and infrastructure, including wardens, chefs, doctors, and other jail employees.

However, there is still a lack of adequate implementation of the rules issued by them. Furthermore, there has been no formulation of laws based on those guidelines by the legislature, indicating no improvement in the situation. The Supreme Court should evaluate the socioeconomic status of the undertrial detainees. The main challenge that undertrial detainees have is complying with the bail application in terms of presenting a surety, which results in their suffering in jail. Furthermore, the quality of legal help offered must be increased while keeping in mind the interests of both the legal aid provider and the accused.

The condition of the bail bond regarding the producing of a surety should be waived of in legitimate cases where the accused does not have a sound financial position. I believe the court in the case of In Re Policy Strategy for Grant of Bail SMW , took a step in the right direction by stating that if bail bonds are not furnished within one month, trial courts may consider suo motu relaxing conditions. Furthermore, the resolution enacted by the High Powered Committee following the Odisha High Court's decision that favours the release of undertrial inmates on a PR Bond is also a step in the right direction. However, a more efficient system must be devised in which corrective actions are properly implemented, and the rights of the accused are maintained and given priority.

Both the authors are fifth year law students at the National University of Juridical Sciences, Kolkata and the National Law Institute University, Bhopal respectively.