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Imagine being a person merely accused of a crime – presumably innocent – stuck in an overcrowded prison in the middle of a raging pandemic.
This was the reality of more than 3.7 lakh people in India. With the on-set of a global pandemic, when one would expect public health reasons to accelerate justice needs and release anyone who should not be in prison, we instead saw the sharpest increase in over 2 decades – the undertrial population rose by 11.7 percent in 2020, according to the latest statistics from the National Crime Records Bureau.
Undertrials therefore now comprise nearly 76 percent of prison inmates in 2020, up from 69 percent the year before.
This is particularly concerning given the dominant perception that the administration was releasing prisoners to decongest prisons and not subject them to further risks during the pandemic.
Moreover, as early as March 2020, the Supreme Court ordered the setting up of High-Powered Committees (HPCs) in every state and union territory to identify categories of prisoners who could be released on interim bail.
Specifically, the Court asked to consider release of convicted and undertrial prisoners charged with offences for which punishment is up to 7 years or less, with or without fine.
The Delhi High Court too, in its own motion, sought to identify prisoners who could be granted interim bail to prevent Covid-19 outbreaks in prisons. Several justice makers also filed Public Interest Litigation (PIL) petitions at various High Courts, such as in Telangana and Bombay, inquiring about the timely release of prisoners against rising Covid-19 cases.
In response, several states committed to releasing thousands of prisoners in the months to come.
Why then did the number of undertrial prisoner population see such a dramatic increase during the pandemic?
There could be several reasons, primarily among them being inadequate movement in jail admissions and releases.
What the Data Tells Us
Here is what the available data tells us: The overall jail admissions did actually decline by 14.3 percent in 2020.
But it was outweighed by the 20 percent drop in overall releases of undertrials (on bail and acquittal) and a 25 perce increase in the share of people spending longer than a year in prison (from 85,646 (2019) to 1,07,212 (2020)).
The drop in releases could partly be attributed to the lack of access to courts during the pandemic, which fell by 65 percent according to the annual India Justice Report.
Lacking the digital infrastructure to switch to e-filings or e-hearings, a large number of district courts were inoperational for extended periods of time making it difficult for undertrials to apply for and secure bail.
Meanwhile, pending cases in district courts soared up by over 18 percent from 2019, adding to the already stressed judicial system. And, by the end of 2020, the courts and the police in several states started pushing for repopulation of the prisons by refusing to extend interim bail to prisoners.
The unprecedented moment we had before us to decongest prisons and offer relief to undertrials during the pandemic was also sadly lost.
The HPCs constituted by the Supreme Court had the opportunity to use their discretionary powers to identify undertrials as a category to prioritize release (especially during a pandemic) based on their vulnerabilities to covid-19 and a presumption of innocence until proven guilty.
Instead, HPCs excluded large proportions of prisoners based on the seriousness of the offense they were charged with.
Even the Public Interest Litigation (PIL) petitions filed by the National Alliance for People’s Movement before the Bombay High Court and the Supreme Court calling out the HPCs for being exclusionary, arbitrary and unreasonable, were dismissed.
What the Data Doesn't Tell Us
What is more concerning is that even after two years we still don’t know enough about the state of the pandemic in prisons. The latest Prison Statistics report describes the various measures taken in each state to prevent the spread of covid-19, such as setting up isolation units or distributing masks.
But it is conspicuously silent on the actual toll of the pandemic behind bars. There is no data on the number of covid-19 tests administered, positive cases or deaths among prisoners. Even the chapter that specifically discusses deaths in prisons finds no mention of pandemic related fatalities.
It is only because of the efforts of individual justice makers, such as those journalists reporting on prisons and organizations like CHRI that compiled whatever information they could from media reports, that we have some data on covid-19 among prisoners.
According to CHRI, between May and December of 2020, there were at least 18,157 positive cases and 17 deaths among prisoners and prison staff across 23 states and union territories. It goes without saying that these numbers are massive undercounts.
Absence of such critical information from the authorities that would help us assess the health risks in prisons only harms our preparedness for ongoing and future emergencies.
A Deeper Malaise in the Criminal Justice System?
We would be doing a disservice to the community if we see these problems only as a pandemic issue. Maja Daruwala, the Chief Editor of the India Justice Report says,
“The entire implementation, supervision, decisions pipeline has been disrupted due to the pandemic. One can understand the disruption, but it also shows the larger malaise in our system.”
Different systemic factors have been contributing to the large and rising undertrial population in India: the mandate of the police and the magistrates in arresting and admitting new cases, the staffing capacity and infrastructure of courts to enable hearings, access to legal aid, the effectiveness of bodies like HPCs and the Undertrial Review Committee (UTRC) in each district responsible for preventing unnecessary pre-trial detention and recommending bail – to name just a few.
The fact that over 70% of those undertrial come from marginalized communities further reflects an inherent bias in the system. “Even if bail is granted, many undertrials are unable to leave prisons because they can’t pay even the most nominal amounts,” explains Abantee Dutta of Studio Nilima.
The interplay of these factors and its impact on the day-to-day functioning of our justice system remains opaque to us without timely, granular and comparable data.
While the pandemic has made apparent the many overwhelming flaws of our system, it still offers some hope.
The repeated review of prison overcrowding, specifically the condition of undertrials, over the last two years by the courts shows concerted effort to rethink our prison systems.
The mantra of “bail not jail” has also been re-popularized by the higher courts, bringing under scrutiny the tight-fisted nature of the district courts in granting bail.
The Supreme Court has also noted that state authorities and the police need to change their attitude and limit the default tendency to arrest. And even though the national figures for undertrials soared dramatically, several states actually saw significant decline such as in Mizoram (44 percent) and Kerala (17 percent).
We need to understand how this was achieved, and for that we need access to more actionable data.
As Maja Daruwala points out,
“Things will continue to remain chaotic if we do not have minutiae in data, data that is verifiable and credible, and that can be played back to the system, not just at the higher levels but also to the station houses, the magistrates, and the jail superintendents to improve their role in the system.”
The more data we have, the better our chances of piecing together the story of our justice system and how we can make meaningful change.
(Poornima Rajeshwar is a Curator of the ‘Data for Justice’ Initiative at Agami. Swati Banerjee and Vaivaswatha Yagani are both fifth year law students interning with Agami. All three are associated with the open data platform Justice Hub, which seeks to promote data-creation and data-sharing in the world of law and justice. Follow their work @JusticeHubIndia. This is an opinion piece and the views expressed are the authors’ own. The Quint neither endorses nor is responsible for them.)
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