Freeing the undertrial

Without substantive reforms to the investigation and trial process, early release of undertrials may further aggravate the pathologically low rates of conviction and incarceration in the Indian criminal justice system

On September 4, a Supreme Court bench comprising Justices Kurian Joseph, R.F. Nariman and Chief Justice R.M. Lodha relied on Section 436A of the Criminal Procedure Code, 1973 (CrPC) to direct all States to release undertrials in prison for more than half the sentence they would serve if convicted within a period of two months. The Bench went further to direct the Central government to provide a road map for “fast-tracking” the entire criminal justice system — not just certain classes of cases. Not surprisingly, this order has attracted widespread media coverage; some civil society organisations have described it as “inspiring and welcome.” Will an activist court and a decisive Union government together solve the problem of languishing undertrials in the next two months?

In this piece we show that Section 436A is unlikely to be the solution to the undertrial problem in India. Further, to arrive at any solution, we must conceptually clarify and empirically understand what the “undertrial problem” is. Is it the proportion of undertrials to convicts in the Indian prison system, or the undue length of detention without proof of guilt or the socio-economic profile of the undertrial that lies at the core of the problem? The precision in answering this is the key to devise an effective law-and-policy solution.

The primary constitutional and moral concern with undertrial detention is that it violates the normative principle that there should be no punishment before a finding of guilt by due process. So, undertrial detention of those suspected, investigated or accused of an offence effectively detains the “innocent.” However, all criminal justice systems across the world authorise limited pretrial incarceration to facilitate investigation and ensure the presence of accused persons during trial. So, the critical challenge in this area is to identify the normatively optimal and necessary level of pretrial incarceration and then design a criminal justice system to achieve this.

Empirical claim

The Indian debate on the “undertrial problem” begins with the empirical claim that the proportion of undertrials to convicts in our prison system is too high. In 2012, undertrials comprised 66 per cent of the prison population, and in the period 2001-2010 this rate has on average been a stubborn 67 per cent. Is this high proportion of undertrials normatively undesirable or a sign of a pathological criminal justice system? A high undertrial proportion in the prison population may be the result of too many arrests during the investigation and trial process or too few convictions at the end of trial. India has an exceptionally low rate of incarceration which is defined as the number of persons in prison per 1,00,000 population. The International Centre for Prison Studies (ICPS) points out that at 30 (2012) the Indian incarceration rate is among the 10 lowest rates in the world. Mali (32) and the island nation of Comoros (28) are on either side. Our South Asian neighbours (Pakistan – 41; Bangladesh – 42) recorded higher rates of incarceration but similar percentages of undertrial detention (Pakistan 66 per cent/Bangladesh 68 per cent). By contrast, the United States displays an exceptionally high incarceration rate (707 in 2012) and a relatively low proportion of pretrial detainees in the prison population (21 per cent).

In absolute numbers, in 2013, there were around 2,49,800 undertrials in India and they formed roughly 70 per cent of the prison population. In the U.S., in the same year, there were more than double that number of remand non-convicted prisoners (4,75,692). Yet they formed only 21.2 per cent of the prison population. While there may be scope for a substantive debate about which countries offer the appropriate comparison to India, there is no doubt that the fact of India’s high percentage of undertrial incarceration must be placed in the context of the relatively small size of its prison population overall. Any effort to identify the optimal or normatively justifiable rate of undertrial detention must account for the pathological failures of the Indian criminal justice system to convict and imprison despite the overwhelming public concern with the failure of public order and security. If our conviction rate improves, then the proportion of undertrials will drop. Taken alone, the high proportion of undertrials in India is a sign of a pathological criminal justice system. Unless we can show that current undertrial detention is for excessively long periods or disproportionately targets the poor and the marginalised, the proportion by itself is not the core problem that we need to focus on.

Offences and length of detention

The excessive length of undertrial detention has been a subject of judicial, media and civil society concern. Section 436A was introduced into the CrPC in 2005 to mandatorily release on bail all undertrials who have already served half the period of their sentence if convicted. The Supreme Court, in its recent order, and civil society groups have invoked Section 436A of the CrPC as the primary strategy to reduce the undertrial population. This strategy would work if undertrials are in fact detained for inordinately long periods of time.

However, the available National Crime Records Bureau (NCRB) data on prisons shows that between 2001 and 2010, on average around 40 per cent of undertrials incarcerated in the country spent less than three months in prison; the largest single category among periods of detention. Further, during the same period, over 60 per cent of undertrials on average were detained for less than six months. If we include the percentage of undertrials detained for over six months but less than a year, we find that on average over 80 per cent of undertrials in India spent less than one year in prison during the years under consideration. The offences for which these undertrials are being investigated or tried make the futility of a Section 436A strategy apparent. We conservatively estimate that at least 75 per cent of all undertrials between 2001 and 2010 in the country were detained for offences with a maximum punishment of three years and above and could be detained for up to 18 months under Section 436A. The single largest category of undertrials by offence was that of murder, which accounted for close to 22 per cent of all undertrials on average each year. Hence, relatively short periods of undertrial detention for an overwhelming majority of undertrials than is commonly assumed, together with the long sentences attached to the offences undertrials are investigated or accused of leads inevitably to the conclusion that very few undertrials may benefit from Section 436A. The enactment of Section 436A in 2005 had little impact on the composition of the prison population thereafter. The new enthusiasm to implement this provision is welcome but is unlikely to be a substantive solution to the “undertrial problem.” If undertrial detention numbers are a problem, we must re-articulate what is the normatively acceptable length of pretrial detention. If we conclude that the requirement of mandatory release, barring in a few limited circumstances, is on the filing of a charge sheet within a period of 90 days from arrest then we are likely to reduce undertrial detention numbers significantly (60 per cent of undertrials). However, without substantive reforms to the investigation and trial process, early release may further aggravate the pathologically low rates of conviction and incarceration in the Indian criminal justice system.

Profile data

Irrespective of the length of undertrial detention, the core of the undertrial problem may be its disparate social, economic and religious impact. While existing data sources are inadequate, our preliminary research suggests that the illiterate, lower castes and members of religious minorities are over-represented in the undertrial population. In 2012, close to 74 per cent was either illiterate (30 per cent of the undertrial population but only 18 per cent of the Indian population) or had studied below Class 10 (43.3 per cent of the undertrial population). Similarly, Muslims (21 per cent/14 per cent), Scheduled Castes (22.4 per cent/16.2 per cent), Scheduled Tribes (13.3 per cent/8.2 per cent) are over-represented. In order to show that this is a deliberate or structural result of the prosecution or bail process, we need access to the profile of those arrested. This data is currently unavailable. Nevertheless, a policy response that assumes that the disproportionate numbers of socially and economically disadvantaged people are subject to unnecessary undertrial detention calls for a focussed Centrally sponsored public defender programme to replace the ham-handed legal aid services currently administered.

So far we have argued that legal and public policy responses to the undertrial problem should not proceed solely on the proportion of undertrials in the prison population. Arguably, the high proportion of undertrials is a reflection of the pathological failure of the criminal justice system to successfully convict and thereby secure peace and security. This failure must be resolved by focussing on systematic institutional reform of the investigation and prosecution of offences. Second, our current legal strategy assumes inordinately long periods of undertrial detention and we show that a Section 436A-focussed strategy will have minimal impact on the undertrial population overall. New rules mandating release on the filing of a charge sheet — barring limited exceptional circumstances — along with a Centrally sponsored public defenders programme that weeds out the overt or structural discrimination in the criminal justice system is the best bet for a targeted intervention to reduce the length and eliminate the disparate impact in undertrial detention in India.