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A Solution to Overcrowding in India's Prisons
Covid disruption germinates a path forward
Indian jails are overcrowded, in some cases by as much as 177% as in the northern state of Uttar Pradesh which has one of the highest incarceration densities in the world. The average in India, according to the National Crime Records Bureau data, is over 118% of official capacity, but some jails are bursting to such an extent that prisoners have to take turns to sleep.
According to the same NCRB data, in various jails across India a total of 488,511 prisoners were confined as on December 31, 2020. The number of convicts, under-trial inmates and detainees were 112,589; 371,848 and 3,590, respectively, “accounting for 23%, 76.1% and 0.7%… at the end of 2020.” It is worth calling special attention to the fact that the under-trials and detainees are categorized separately; these people will include those held behind bars, possibly without the prospect of bail.
Even not considering the overall detainee figure, the bigger problem is with pre-trial, or under-trial prisoners. The 76.1% mark has come to pass with the Himalayan pendency of cases at Indian courts. According to an answer given by the country’s law minister in the upper house of Parliament this year, there are over 71,000 cases pending the Supreme Court, the top court of the country, 5.9 million cases pending in different high courts and another 41 million cases pending in the subordinate courts across the country.
There is a massive shortage of courts and judges, and several restrictive laws – such as The Unlawful Activities (Prevention) Act of 1967 – enacted over the years have allowed law enforcement agencies to lock up people without even the prospect of bail or even having to put them up before a magistrate for long periods.
In the federal structure of India, each state has the power to enact further restrictive laws and they, too, can officially circumvent the 90-day automatic bail system. The Indian Penal Code, a Chartered Act of 1860, passed during the British rule of India, has several sections that can deal with almost all regular criminal activity, but governments over time have found it easier to enact legislation that suit their own ends, mostly bypassing the possibility of amending the IPC to better use.
The Covid-19 pandemic added even more pressure as, by 2020, infections were already raging in crowded cells and across prison compounds when the second wave struck India. Convicts and under-trials were at huge risk of being infected – the Delta variant of the time being largely fatal – so were prison staff.
Interestingly, it was in 2019 that Indian prisons recorded the highest overcrowding in 10 years. While the restrictive nature of many of the acts that the accused were being charged with made bail nearly impossible – the onus of proving innocence was shifted to the accused, instead of the age-old practice of an accused being deemed innocent till proven guilty – the Supreme Court of India took the bold step of intervening to assure the prisoners’ right to health under Article 21 of the Constitution of India.
A bench of the court, headed by Justice N V Ramana, the Chief Justice of India, ordered the constitution of high-powered committees in different states and Union territories to look into the record of detainees in different jails and recommend how bail or parole could be granted without delay and without impairment of justice, to effectively decongest jails.
A set of formulae was devised in quick time by the committees and recommendations were put in place. The initial focus was on certain jails where actual occupancy rates were way above stated capacity. Those who had already been on bail or parole had their bail periods extended; as per the May 30, 2021 order of the court under-trial prisoners and convicts booked for offenses punishable with not more than a 7-year sentence were to be released on interim bail for a period of 90 days. They were to remain in home isolation under the surveillance of either a doctor or the police. Relaxation was also allowed to some who were above 60.
The decongestion was effective and quick. More importantly, the mass bails extended did not mean that the convicts or accused went absconding. Almost all reported back to their respective jails when the bail periods ran out and they had also been reporting attendance to the local police stations during bail.
The entire exercise became one of the best judicial decree implementations of the country in a long time, and one that has established a brilliant juridical precedent in India.
If the sudden Covid disruption had led to this forced solution, then its success needs to be studied in detail and replicated.
A recent Supreme Court order had allowed even the Enforcement Directorate (ED) of India, which deals with offenses of money laundering and violations of foreign exchange laws, to search, seize and arrest with impunity. It can also, technically, not present the accused before a magistrate within the statutory time period. This order is being challenged in the top court of the country, but the order possibly negates much of the good work initiated by the country’s top court during the Covid-19 pandemic disruption.
In a country as vast as India, with legal systems as complex as they can get, the pandemic at least pointed to the inherent goodness in people, even if they were convicted criminals. This was a god-given opportunity towards a solution to a major social problem in India. The way forward will be to order a full study of the effects of the temporary and immediate bail system and to find a way to initiate legal reforms that guarantees the basic rights of people, wherever and however they may be.
The original legal principle of “innocent until proven guilty” has to be perpetuated (in many cases this theory is being ignored) and, alongside, bail has to be an assumed right. The balance between politics and jurisprudence must be reinstated.
It took a massive disruption for this change to come out of India’s legal boondocks; now, continuity is needed.