This article, the fourth in the series related to the fourth periodic report submitted by India under Article 40 of the International Covenant on Civil and Political Rights (ICCPR), pertains to the clogged undertrial system and the rising concern of custodial torture and death. The reality of the matter is quite different from that claimed by the government of India.
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Read Part 1 here.
Read Part 2 here.
Read Part 3 here.
THE flagship of the United Nations treaty body system will be examining India’s fourth periodic report in all probability on July 15 and 16, 2024. The Human Rights Committee (HRC) is the treaty body tasked to monitor compliance with the International Covenant on Civil and Political Rights (ICCPR).
This part is based on issue number 20 in the list of issues prior to reporting (LoIPR) and the government of India’s reply in Paras 102 and 103 of the report, concerning Articles 2, 7, 9 and 14 of the ICCPR.
In its report, the government of India claims, “The life and liberty of individuals is secured by the Constitution of India and laws made thereunder.” However, the report decidedly omits to call attention to the plight of undertrials in the country.
Increase in undertrial population
A comparison of the statistics on prison population provided by Prison Statistics India’s reports shows that there has been an overall increase of 37 percent in the prison population from 2014 to 2022 (from 418,536 prisoners in 2014 to 573,220 prisoners in 2022).
However, this corresponds to a disproportionate growth of 53.53 percent in the population of undertrial prisoners (from 282,879 undertrial prisoners in 2014 to 434,302 undertrial prisoners in 2022).
The reasons for the consistently high proportion of undertrials in India are linked to the lack of quality legal aid services for undertrials, the financial system of bail, and the lengthy trial process.
In its report, the government of India claims, “The life and liberty of individuals is secured by the Constitution of India and laws made thereunder.”
The delay in the trial process was further exacerbated by the limited functioning of trial courts during the Covid pandemic and reflects in the overall increase in the undertrial population despite mechanisms such as the release of undertrials through recommendations of the ‘high powered committee’ and the National Legal Services Authorities’ campaigns for the release of undertrials under the undertrial review committee’s (UTRC) guidelines.
Majority of undertrials from marginalised groups
An analysis of the prison populations’ demographics in the last 25 years reveals that at least 66 percent of the prison population has consisted of marginalised groups.
Some studies have pointed to a disproportionate representation of Muslims, Dalits and Adivasis in the prison population. Arguably, persons with poor socio-economic indicators are incarcerated for longer than necessary as the existing bail system presumes fear of forfeiting property as the only guarantee to summon their presence in court.
As a result, people who do not possess even minimal property become unequal before the law.
Also read: International reports on India and the dual standards in India
The current criminal procedure framework almost entirely ignores the connection between socio-economic demographics and the risks of prolonged incarceration.
The new criminal laws, Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BNA) also fail to address the apparent connection between social indicators and risks of criminalisation and incarceration.
Amendments to bail law
Arbitrary arrests and illegal detention are leading causes of the rising prison population. At the end of 2022, a total of 573,220 prisoners were incarcerated in Indian prisons, 75.5 percent of whom were undertrial prisoners.
Moreover, 1,548,143 undertrial prisoners were released in 2022 of which 95 percent were released on bail, thereby making bail a crucial tool against prolonged detention.
The Law Commission of India in its 268th report pointed to inconsistency in the bail system as one of the reasons for the overcrowding of prisons across the country.
The reasons for the consistently high proportion of undertrials in India are linked to the lack of quality legal aid services for undertrials, the financial system of bail, and the lengthy trial process.
It further acknowledged the fact that due to excessive reliance on monetary bail provisions, the powerful, rich and influential obtain bail promptly whereas the poor languish in jails.
The Law Commission in making its recommendations highlighted the underlying principle that: “Any bail practice that results in the incarceration of the accused person without meaningful consideration to ability to pay, alternative methods of ensuring appearance at a trial and the nature of the crime is violative of the rights of the accused.” The report also recommended amendments to ensure safeguards against arbitrary arrests under Section 41A of the Criminal Procedure Code (CrPC).
More recently, the Supreme Court in S.K. Antil versus Central Bureau of Investigation issued directions stating that: “The government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.”
Despite court Orders from the higher courts directing subordinate courts to swiftly dispose of bail applications, continuous regression in the state of undertrials indicates poor compliance and delays in the disposal of bail.
It may be noted that although Section 436A of the CrPC allows for the release of an undertrial who has undergone half of the maximum prescribed sentence for the offence they are charged with, it is not a right given to the undertrial, but is subject to judicial discretion. The Prison Statistics India’s 2022 report also substantiates the low rate of releases under Section 436A.
The new criminal laws have not addressed the lacuna in the bail process and contrarily, they introduce enhanced durations of police custody, wider powers of arrest and detention and restrict the scope of bail provisions.
Section 187 of the BNSS allows for the extension of detention in police custody beyond the 15 days stipulated in the CrPC, potentially up to 60 or 90 days.
Detention in police custody has been authorised beyond the fifteen-day period provided under the CrPC and for the entire detention period of sixty or ninety days.
Exploring the alternatives to detention
GPS tagging
In November 2023, an undertrial prisoner in the state of Jammu and Kashmir was released on bail after being tagged with a Global Positioning System (GPS) tracking anklet for monitoring his movements.
It was the first instance where GPS was used in India to monitor an accused released on bail. An earlier decision by the Delhi High Court had also stressed the need to introduce GPS-like technology to monitor undertrials’ movements for monitoring on bail.
The court had observed that the use of such technology would allow the authorities to gather information on the undertrial prisoner while permitting such undertrials to continue with ordinary activities of their normal life.
However, it needs to be understood that the implementation of the GPS tracking system surveils all movements of the accused, creates an unnecessary record of their everyday movements, and imposes an additional psychological burden of constant surveillance.
An analysis of the prison populations’ demographics in the last 25 years reveals that at least 66 percent of the prison population has consisted of marginalised groups.
GPS trackers, although introduced as alternatives to imprisonment, violate the accused person’s privacy under Articles 20(3) and 21 of the Indian Constitution.
The use of GPS trackers violates the cardinal principle of presumption of innocence by curtailing an accused person’s liberty and subjecting them to prison-like restrictions.
Anticipatory bail
While the law provides for anticipatory bail as a precaution against arbitrary arrest, the procedure for deciding anticipatory bail applications also suffers from delays. It was recently observed that an anticipatory bail application had been pending for more than two years in Bihar, the state with the largest prison population in India.
Additionally, offences under special laws such as the Unlawful Activities (Prevention) Act, 1967 and the Schedules Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are excluded from the ambit of consideration for anticipatory bail.
Substantial changes have been made to the provision of anticipatory bail under the new criminal laws.
Monitoring mechanisms
Undertrial review committees (UTRCs)
UTRCs, constituted by the Union ministry of home affairs, consider cases of inmates who have completed half of their sentence, in accordance with Section 436A of the CrPC.
While most districts have functioning UTRCs, their consideration is limited to only a few categories out of their vast mandate due to the lack of infrastructure to identify eligible undertrial prisoners and release persons charged with multiple offences, poor access to legal aid and the undertrial’s inability to provide a surety despite being eligible for release.
A special UTR campaign to commemorate India’s 75th independence day witnessed a rather low proportion of undertrials being released, highlighting the UTRC’s limitations in addressing the overcrowding of prisons.
The 24,789 undertrials released under the special campaign constituted only 52 percent of the total number of prisoners who were recommended for release.
Although this figure is more than what the UTRC’s functioning has yielded in the last three years, they released only 4.47 percent of the total undertrial population in the country.
Also read: Bhima Koregaon: The process continues to clot as punishment as another year passes by
The Prison Statistics India’s report includes data up to December 31, 2022 and the actual number of undertrial influx in prisons in 2022 is likely much higher, resulting in the actual proportion of undertrials released being even lesser.
The identification of undertrials eligible under the UTRC guidelines depends on the availability of accurate data in the e-prisons module. However, the current status of data collation and updation on e-prisons is far from accurate.
Impediments in the on-ground implementation of the e-prison module have been discussed by the Supreme Court along with necessary directions to streamline the implementation.
People who do not possess even minimal property become unequal before the law.
The Supreme Court’s Order in In Re: Policy Strategy for Grant of Bail notes the lack of mechanisms to communicate bail Orders from courts to prisons and challenges with the workforce and capacity for data entry in the e-prison module. The status of compliance with the said directions remains unclear as of date.
Reforms needed for speedy trials
State governments in India have not yet implemented the case flow management Rules, which raises serious concerns. Uttar Pradesh, despite having the highest pendency of criminal cases, has still not implemented case flow management Rules.
Some states have only implemented the case flow management Rules for civil cases. Alternative mechanisms such as fast-track courts and jail adalats which have been put in place to speed up the procedure tend to compromise on the procedural rights of the accused in the haste to deliver speedy justice and also face infrastructural challenges.
Similar to case flow management, changes in line with the interoperable criminal justice system (ICJS) within prisons across India are still underway. While some changes under Phase I have been implemented, Phase II is still ongoing.
Phase II focuses on the integration of police, prisons, forensics, prosecution and courts and enabling these wings of the criminal justice system to actually use these new tools.
Questions of custodial deaths and torture
Issue number 18 in the LoIPR prompts the government of India to respond to reports of custodial deaths, police torture and ill-treatment, to which the government of India claims in Para 90 of its report, “India condemns any form of torture.”
However, the government’s claims are far from the truth.
Accountability for custodial violence
Despite a legal framework in place for action against cases of custodial violence, prosecution and the conviction rate in custodial death cases continue to be extremely low.
Arbitrary arrests and illegal detention are leading causes of the rising prison population.
According to a report by the National Crime Records Bureau (NCRB), there were 324 custodial deaths between 2019 and 2022 and alarmingly not a single conviction against police personnel for human rights violations in the same duration.
Under-reporting of custodial deaths and torture
There is significant under-reporting of custodial deaths by the NCRB, as demonstrated by reports by independent organisations such as the National Campaign Against Torture, whose 2019 and 2020 reports reflect 125 and 111 custodial deaths respectively.
However, the NCRB’s data recorded 85 and 86 custodial deaths in 2019 and 2020 respectively, which was also confirmed by the National Human Rights Commission (NHRC)’s data.
Also read: Global rights body must hold NHRC accountable for its silence on key human rights issues in India
While there is no official data on torture (not leading to death), reports suggest that its practice is frequent and systematic, especially during investigations.
Inconsistency in reported causes of death in custody
Under-reporting of deaths in custody is coupled with misreporting of the actual cause of death— particularly an under-reporting of torture as the cause of death.
Official data tends to attribute the majority of the deaths in custody to suicides or natural causes (medical illness), with only a small proportion of cases due to police violence.
Victims of police torture and their families along with organisations working on issues of custodial violence and death have consistently contradicted such ‘data’ by documenting their experiences.
Inconsistency in recorded circumstances of death and the tendency to attribute most deaths to suicides or natural causes have an impact of absolving officers from liability of prosecution under serious charges.
Marginalised identities of victims of custodial violence
Independent reports also suggest that the majority of the victims of custodial violence belong to poor and marginalised communities. It exacerbates the unequal power dynamics in police custody, coupled with the significant hurdles faced by families of the victims to initiate prosecution in cases of custodial violence.
Lack of data on the outcome of accountability proceedings
There is a lack of comprehensive information about deaths in custody, along with an absence of data on the progress and the outcome of accountability proceedings in India.
Also read: Custodial death in Chennai: How collusion of institutions contributes to impunity
This is particularly true for information about the status and outcome of magisterial inquiries mandated under Section 176(1A) of the CrPC for deaths in custody.
The Law Commission of India in its 268th report pointed to inconsistency in the bail system as one of the reasons for the overcrowding of prisons across the country.
While there is not enough data to assess compliance with NHRC guidelines on procedures to be followed in cases of custodial violence, reports suggest that these guidelines are frequently violated, including irregular procedures being followed during the post-mortem, absence of experts while conducting an autopsy, incessant delays and omission of external injuries.
Inadequacy of the police’s human rights training
Status of Policing in India’s report of 2019 confirms police biases against caste and religious identities and highlights the inadequacy of human rights training and caste and gender sensitisation in tackling prejudice.
According to the report, 12 percent of police personnel reported never having received human rights training. Even amongst those who received human rights training, 41 percent of the respondents said it was only at the time of induction.
Three out of four police personnel justified the use of extrajudicial measures against criminals and held strong perceptions of Muslims and migrants being ‘naturally prone’ to committing crimes.
The report also raises structural concerns about the quality and adequacy of police training more broadly, through an analysis of official data between 2012 and 2016. It highlights the poor level of training imparted to police personnel, as well as inadequate budgetary allocation for police training (1 percent of total police expenditure).
Use of technology for transparency in investigation
The new criminal laws emphasise the use of audio-video technology during an investigation, most significantly through the inclusion of a new provision mandating the audio-video recording of all search and seizure proceedings.
While audio-video recordings have the potential to strengthen the quality of evidence and reduce violations, they are also more susceptible to alteration, modification and transposition, through direct intervention or unintended corruption of a digital record.
GPS trackers, although introduced as alternatives to imprisonment, violate the accused person’s privacy under Articles 20(3) and 21 of the Indian Constitution.
At the same time, poor infrastructure and institutional capacity— including lack of funding, equipment, systems for collection and secure storage, transfer of electronic records, training and forensic facilities— have also hindered effective compliance with technology in investigations in police stations across the country.
Reports have demonstrated the lack of training and incapacity of police personnel to effectively use new technologies in investigation.
Compliance with the Supreme Court’s directions
The Supreme Court, in September 2006, introduced several directions towards police reforms in Prakash Singh & Ors. versus Union of India & Ors., however, their implementation and compliance across states remains stagnant, despite setting up a monitoring committee to oversee compliance.
Until 2010, four major states— Karnataka, Maharashtra, Uttar Pradesh and West Bengal were found to be completely non-compliant with the directions issued by Prakash Singh.
Also read: Police Reforms via Prakash Singh judgment: A boon or a bane?
The Supreme Court’s directives included setting up ‘police complaints authorities (PCAs)’ at the state and district level to oversee police functioning and provide a forum for citizens to seek redressal against police violations.
However, according to a report in October 2023, PCAs are operational in only 11 states and Union territories.
State PCAs work on the basis of a diluted mandate, lack rules on procedure, have a large number of vacancies and have a low rate of initiating inquiries, despite receiving complaints.
Legislative developments related to the prevention of torture
In its third universal periodic report, India had committed to ratifying the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). It also committed to examining the existing criminal laws in order to amend them in line with the UNCAT.
While the law provides for anticipatory bail as a precaution against arbitrary arrest, the procedure for deciding anticipatory bail applications also suffers from delays.
Unfortunately, India is yet to ratify the UNCAT and despite the recent ‘overhaul’ in the criminal law framework, the three new criminal laws do not define ‘torture’ or consider torture to be a separate offence.
Also read: India’s continued refusal to ratify U.N. Convention Against Torture lacks substance
The new procedural laws appear to mediate a significant hurdle to prosecution in cases of custodial violence caused due to unending delays in the grant of sanction for proceedings against public servants. If the sanctioning authority does not respond within 120 days, the sanction will be deemed to have been accorded.
At the same time, the new laws significantly expand the permissible period in police custody during investigation, and such prolonged detention in police custody heightens the vulnerability of the suspect and the threat of police violence.
The lawmakers have failed to add a provision about the presumption that injuries sustained in police custody will be deemed to have been caused due to police violence.
The lawmakers have failed to add a provision about the presumption that injuries sustained in police custody will be deemed to have been caused due to police violence.
The BNA continues to include the provision for ‘recovery evidence’, which has been widely criticised for enabling a culture of torture and police.
Next: Government of India on unlawful arrests and illegal detention
