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Prisoners in
India
The laxity with which we throw citizens into
prison reflects our lack of appreciation for the
tribulations of incarceration; the callousness
with which we leave them there reflects
our lack of deference for humanity. It also
reflects our imprudence when our prisons
are bursting at their seams. For the prisoner
himself, imprisonment for the purposes of
Aparna Chandra the trial is as ignoble as imprisonment on
Keerthana Medarametla conviction for an offence, since the damning
finger and opprobrious eyes of society draw
no difference between the two. The plight of
the undertrial seems to gain focus only on
a solicitous inquiry by this Court, and soon
after, quickly fades into the backdrop.
Thana Singh v. Central Bureau of Narcotics1
I
not only is the extent and duration of undertrial
n this chapter, we analyse the state of under-
trial incarceration in India. It is based on incarceration on the rise, but also that such incar-
data from the Prison Statistics India Report ceration has a disproportionate impact on the most
and Crime in India Report released annually socio-economically vulnerable sections of society.
by the National Crime Records Bureau (NCRB).
The Prison Statistics India Report, 2015 indicates
The latest data available is for 2015. We have com-
pared the data for 2015 with that for the preceding that 67 per cent of India’s prison population com-
14 years to study trends and patterns in undertrial prises undertrial prisoners.2 This number has been
incarceration. Where data for the preceding 14 consistently high, at an average of 66.97 per cent
years is not available, we have relied on data for 10 over the last 15 years,3 as may be seen in Figure 1.
71.00
70.00
69.00
68.00
Percentage
67.00
66.00
65.00
64.00
63.00
62.00
61.00
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
Years
Note: The corresponding figures are set out in Table A1 in the Annexure.
In addition to this, prisons are chronically over- decline in occupancy rate from 2001 to 2009,4 the
crowded, operating at 114.5 per cent of their capac- rate has been consistent over the last seven years, as
ity at the end of 2015, a marginal decrease of 2.56 can be seen in Figure 2.
per cent from 117.4 per cent in 2014. After a visible
Years
Occupancy Rate
Note: The corresponding figures are set out in Table A2 in the Annexure.
Significantly, although the Supreme Court has held incarcerated for over five years. This phenomenon
that speedy trial is implicit in the requirement for is at a time when the number of undertrial prison-
‘just, fair, reasonable’ procedure under Article 21,5 ers as a whole has been on the rise and the percent-
the data on undertrial prisoners for over five years age of undertrials who spend less than one year in
in the last 15 years highlights certain grave con- prison is broadly on the decline, implying that a
cerns. As may be seen from Table 1, the absolute higher proportion of people tend to stay in prison
number and percentage of undertrials who have for longer than one year. That the proportion of the
spent more than half a decade in prison, espe- undertrial population that spends more than five
cially in the last five years, has been progressively years in prison is also increasing buttresses the con-
increasing, indicating that the problem is only get- cern regarding the increasing length of undertrial
ting worse. Currently, 3,599 prisoners have been incarceration.
TABLE 1. Number and Percentage of Undertrial Prisoners for More than Five Years and Less than One Year
(2001–2015)
Year Total number Number of Percentage of Number of Percentage of
of undertrials undertrials who have undertrials in jail for undertrials who have undertrials in jail for
been in prison for more than five years been in prison for less less than one year
longer than five years than one year
2001 2,20,817 1,264 0.57 1,77,386 80.33
2002 2,23,038 1,026 0.46 1,79,015 80.26
2003 2,17,658 1,481 0.68 1,77,921 81.74
The reasons for the increasing undertrial problem a reasonable suspicion exists of their involvement.6
in India are twofold: first, lax arrest laws and second, This section is so broadly worded, and places so
stringent bail laws. few requirements on a police officer in relation to
effecting an arrest, that it has long been the source
of indiscriminate arrests. The Supreme Court itself
recognised this concern in Joginder Kumar v. State
of UP.7 The court has also cautioned that arrest
ARREST should be treated as an exception and not the rule
Indiscriminate arrest laws contribute significantly and that just because the police has the power to
arrest, does not mean that they should do so in each
to the burgeoning undertrial population. The law
and every instance.8
relating to arrest with or without a warrant and the
rights of persons who are arrested are contained in In light of concerns raised about the arbitrary
Sections 41–60 of the Code of Criminal Procedure use of the arrest power, in 2009, the Parliament
(CrPC), 1973. Section 41 stipulates the different amended Section 41 to limit the power of arrest
categories of persons who may be arrested without for cognisable offences for which punishment is
warrant by the police. The bulk of arrests under this seven years or less. Section 41(1)(b) of the CrPC
section concerns persons who have been accused now provides that a police officer may arrest any
of being involved in any cognisable offence, or person without warrant against whom a reasonable
against whom a reasonable complaint has been complaint has been made, or credible information
made, or credible information has been received, or has been received, or a reasonable suspicion exists
4. To prevent such person from making any Through these systemic changes, the legislature
inducement, threat or promise to any person and judiciary have attempted to curb unnecessary
acquainted with the facts of the case so as to arrests. These developments seem to be bearing
dissuade him from disclosing such facts to fruit. An analysis of the overall rate of arrest [calcu-
the court or to the police officer; or lated by dividing the total number of arrests against
the total number of cognisable crimes reported
5. Unless such person is arrested, his presence under the Indian Penal Code (IPC), 1860] for the
in the court whenever required cannot be last 15 years, suggests a decline.11 We also analysed
ensured. the rate of arrest for theft, as well as for cruelty by
The amended section also requires that the police husband and his family in particular. Theft forms
officer records in writing his reasons for making or the largest bulk of cases registered under cognisa-
not making the arrest. ble offences for which punishment is seven years or
less.12 Further, since the guidelines in Arnesh Kumar
In Arnesh Kumar v. State of Bihar,9 the Supreme were laid down in the context of Section 498-A of
Court reviewed the amended provision on arrest the IPC, cruelty by husband and his relatives has
and sought to further curb the problem of unnec- also been analysed. Figure 3 compares the overall
essary arrests and detention. While under Section rate of arrest with the rates of arrest for cruelty and
41(1)(b) the requirement of giving reasons is limited theft. The data for theft and cruelty by husband
to the police officer, the Supreme Court empha- and his relatives also indicates a sharp decline in the
sised that the magistrate should also apply his mind rate of arrests after Arnesh Kumar.
2.50
2.00
Rate of Arrest
1.50
1.00
0.50
0.00
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
Years
Rate of Arrest for Theft Rate of Arrest for Cruelty Rate of Arrest
Note. The corresponding figures are mentioned in Tables A3, A4, and A5 in the Annexure.
It is important to note that Arnesh Kumar was came into the system in 2015. By the end of 2015,
decided in late 2014. Therefore, we only have fig- of these 15,74,433 individuals, 12,92,357 (82.08
ures for 2015 to study the impact of Arnesh Kumar. per cent) were released from prison for various rea-
As such, it might be too early to draw inferences sons such as acquittal, release on bail, release on
about the impact of this judgment. Having said appeal, transfer, extradition, and other releases dur-
that, the trend does indicate that if there are suf- ing the course of the year. Of these, 11,57,581 per-
ficient safeguards in place to prevent arrest unless sons (73.52 per cent of the 15,74,433 undertrials)
absolutely necessary, it will go a long way in pre- were released on bail,14 while 2,82,076 undertrials
venting undue incarceration. remained in the system at the end of 2015. On the
face of it, the numbers suggest that a large propor-
tion of people who are incarcerated are released,
especially on bail. However, in absolute numbers, a
significant proportion of them continue to remain
BAIL
in prison. Further, as we demonstrate in Figure 4,
The second cause of the increasing undertrial incar- despite various interventions by the legislature and
ceration is the problematic bail law in India.13 An the judiciary, the proportion of undertrial prisoners
analysis of the Prison Statistics of 2014 and 2015 who continue to remain in prison has not shown
indicates that a total of 15,74,433 undertrial pris- any decline. The number of undertrial prisoners
oners passed through the prison system in 2015. released in general and the number of undertrial
This includes 2,82,879 persons who were in prison prisoners released on bail has been constant in pro-
pending trial at the end of 2014 and 12,91,554 who portion to the total number of undertrial prisoners
6,000,000
60,00,000
5,000,000
50,00,000
40,00,000
4,000,000
30,00,000
3,000,000
20,00,000
2,000,000
10,00,000
1,000,000
00
2006 2007 2008 2009 2010 2011 2012 2013 2014 2015
Year
Of the 26.48 per cent (4,16,852) undertrial pris- to be in the system. This implies that of the people
oners who were not released on bail, 12.5 per cent who are not released on bail or otherwise, nearly
(52,191) were either released on appeal or for other one in four ended up being acquitted. Table 2
reasons.15 That leaves 3,64,661 undertrial prisoners shows a similar analysis for the last 10 years, and
who were not released on bail, appeal, or other- suggests that on average one in five undertrials are
wise. Of this group, 22.64 per cent (82,585) were acquitted.
acquitted and the remaining (2,82,076) continue
This worsening problem is despite interventions the time of the order. Similar ‘one-time’ orders were
from various organs of the state. For example, the also passed by the High Court of Delhi in Shankra
legislature amended the CrPC in 2005 and intro- v. State (Delhi Admn.).20 Since the directions in all
duced Section 436-A to release undertrial prisoners these cases were limited to matters pending at that
who serve half the maximum sentence in prison as time, they did not contribute to systemic changes
a matter of right. Further, Section 436 of the CrPC in bail laws. Systemic changes such as the intro-
was amended in 2005 to provide that if a person duction of Section 436-A have also not contributed
arrested for a bailable offence is not able to furnish significantly due to the non-implementation of the
bail within a week of arrest, he shall be presumed to provisions, as noted by the Supreme Court in Bhim
be indigent, and shall be released on bond without Singh v. Union of India.21 While recognising the
sureties. problems with implementation of Section 436-A,
the Court directed the jurisdictional magistrate/
The judiciary has also prescribed guidelines to chief judicial magistrate/sessions judge to hold one
deal with the issue of overcrowding in prisons. In sitting per week in each jail/prison for two months
light of a large number of long-pending cases, the to identify undertrials eligible for bail under
Supreme Court has periodically issued ‘one-time’ Section 436-A and to pass an appropriate order
directions for the release of prisoners,16 for exam- with respect to Section 436-A in the jail itself. This
ple, in Supreme Court Legal Aid Committee v. Union was yet another one-time solution to a problem that
of India17 and in Shaheen Welfare Assn. v. Union of is endemic to the system.
India.18
In 2016, in Inhuman Conditions in 1382 Prisons,
Similarly, in R.D. Upadhyay v. State of AP, 19
re, the Social Justice Bench of the Supreme Court
22
the Supreme Court held that undertrial prisoners prescribed comprehensive guidelines to ameliorate
charged with murder should be released on bail if the condition of overcrowding in prisons. It asked
their cases were pending for two years or more, and the central government and the state governments
that persons charged with comparatively minor to take steps for the effective implementation of
offences, such as theft, cheating, etc., should be Section 436 of the CrPC. It also asked National
released if they had been in prison for more than a Legal Services Authority (NALSA) to issue direc-
year. This order was limited to the cases pending at tions to state legal services authorities to look into
2009 13,58,017 16,15,945 13,65,741 12,10,453 11. Data available on Crime in India Reports published annu-
ally by the NCRB.
2010 13,55,416 16,05,620 13,65,522 12,16,280 12. Theft constitutes 27 per cent of the cognisable offences
2011 13,74,925 16,15,023 13,73,823 12,16,481 for which punishment is seven years or less. A general
category called ‘Other IPC Offences’ covers around 60
2012 14,58,531 16,99,731 14,34,874 12,65,500 per cent of all cognisable offences.
2013 14,09,640 16,74,497 13,95,994 12,47,721 13. The Law Commission of India recognised in its 78th
Report, Congestion of Undertrial Prisoners in Jails, that
2014 13,99,497 16,78,000 13,95,121 12,39,733 ‘detention in prison in the case of undertrial prisoners
is generally the result of arrest for an alleged offence not
2015 12,91,554 15,74,433 12,92,357 11,57,581
followed by the grant of bail. It becomes, therefore, mate-
rial to consider at some length the law relating to grant
of bail.’ Law Commission of India. 1979. Congestion
of Undertrial Prisoners in Jails, p. 4, available online at
http://lawcommissionofindia.nic.in/51-100/report78.
pdf (accessed on 29 September 2017).
No te s
14. The NCRB data does not clarify whether bail was
1. (2013) 2 SCC 590. granted by the court of first instance or by a higher court.
2. NCRB. 2015. Prison Statistics India 2015. Available online 15. The NCRB uses the phrase ‘release on appeal’, which
at http://ncrb.nic.in/StatPublications/PSI/Prison2015/ we have assumed to mean release pending appeal, under
PrisonStat2015.htm (accessed on 29 September 2017). Section 389 of the CrPC.
3. NCRB, Prison Statistics. 16. Supreme Court Legal Aid Committee v. Union of India,
4. Occupancy rate refers to the actual number of prisoners (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of
per 100 authorised slots in prisons. India, (1996) 2 SCC 616.
5. Hussainara Khatoon (4) v. State of Bihar, (1980) 1 SCC 17. (1994) 6 SCC 731.
98: (1979) 3 SCR 532. 18. (1996) 2 SCC 616.
6. Sections 41(1) and 41(2) of the CrPC. 19. (1996) 3 SCC 422.
7. (1994) 4 SCC 260. 20. 1995 SCC OnLine Del 399.
8. Joginder Kumar v. State of UP, (1994) 4 SCC 260. See 21. (2015) 13 SCC 603.
also Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273; 22. (2016) 3 SCC 700 (Inhuman Conditions in 1382 Prisons).
Lalita Kumari v. Govt. of UP, (2014) 2 SCC 1.
23. Commissioner & Registrar General. 2015. ‘Religion
9. (2014) 8 SCC 273 (Arnesh Kumar). Census 2011’, Population Census 2011, available online at
10. To ensure that a person who is not arrested is available http://www.census2011.co.in/religion.php (accessed on
for investigation, Section 41-A of the CrPC states that 29 September 2017).