Defending theHuman Rightto a Fair Trial
October 6, 2014
On September 4, the Supreme Court in India ruled that all undertrials—prisoners who are detained awaiting charge—who have served half of their sentence or more should be released. Relying on Section 436A of the Criminal Procedure Code, the judges went on to direct the Central government to provide a road map for “fast-tracking” the entire criminal justice system. Not surprisingly, this order has attracted widespread media coverage; some civil society organisations have described it as “inspiring and welcome.” In this piece we will first clarify what the “undertrial problem” is in India, before showing that Section 436A is unlikely to prove a solution to it.
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 2013, there were around 2,49,800 undertrials in India, forming roughly 70 per cent of the prison population. India has an exceptionally low rate of incarceration (defined as the number of persons in prison per 100,000 population); according to the International Centre for Prison Studies (ICPS), at 30, the Indian incarceration rate is among the 10 lowest rates in the world. The fact of India’s high percentage of undertrial incarceration must therefore be placed in the context of the relatively small size of the prison population overall. This high percentage may in fact be caused by poor rates of conviction that lead to too few convicts being incarcerated rather than there being too many undertrials per se. We argue therefore that 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 Criminal Procedure Code as the primary strategy to reduce the undertrial population in India. This provision mandates that all undertrials detained for half the length of the maximum sentence imposable on them must be released immediately. Arguably this provision will only work if undertrials are in fact detained for inordinately long periods of time. Data from the National Crime Records Bureau (NCRB) shows that between 2001 and 2010, on average over 80 per cent of undertrials spent less than one year in prison. This low average undertrial detention period therefore suggests that very few undertrials may benefit from Section 436A, thus making the futility of this strategy apparent. This provision is unlikely to achieve the dramatic results expected of it.
Irrespective of the length of undertrial detention, the core of the undertrial problem may be its disparate social, economic and religious impact. Our preliminary research suggests that the illiterate, lower castes and members of religious minorities are over-represented in the undertrial population. For example, 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 not completed their tenth-grade (44 percent of undertrials). However, in order to show that this is a deliberate or structural result of the prosecution or bail process, we need access to the profiles of those arrested—data which is currently unavailable. A recognition of the undertrial detainee demographic would certainly inform the implementation of a centrally sponsored public defender programme to replace the ham-handed legal aid services currently administered.
We have argued in this piece that legal and public policy responses to the undertrial problem should not proceed solely on the proportion of undertrials in the prison population; rather, it must take a holistic view of the problem. This includes paying closer attention to the length of time undertrials spend in pre-trial detention—something which the Section 436A strategy fails to do—as well as introducing a Centrally sponsored public defenders programme that weeds out the overt or structural discrimination in the criminal justice system. It is only through looking beyond the headline-grabbing figures that the spectre of unjustified undertrial detention in India will be quelled.
This guest post is a collaboration between Dr. Sudhir Krishnaswamy, a Professor at Azim Premji University and Visiting Dr B.R. Ambedkar Professor of Indian Constitutional Law at Columbia Law School, and Shishir Bail, a Research Associate at Azim Premji University.) For an unabridged version of this article, please click here.
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