The pervasive tyranny of ‘jail without trial’ is because courts and police find trials long and cumbersome

The Chief Justice of India N.V. Ramana and the Supreme Court have offered a wake-up call to the nation on the issue of undertrials languishing in jails, an issue that has diminished our democracy, robbed ordinary citizens of liberty and embedded a system where jail rather than bail has become the routine even before investigations.

India has 6,10,000 citizens as prisoners, nearly 80 percent of them undertrials, Chief Justice Ramana said on July 16 at the inaugural session of a two-day meet of the National Legal Services Authority (NALSA) in Jaipur. The CJI (as reported by news agency PTI) noted: “In the criminal justice system, the process is a punishment. From indiscriminate arrest to difficulty in obtaining bail, the process leading to prolonged incarceration of undertrial prisoners needs urgent attention.” And then went on to add: “Prisons are black boxes. Prisoners are often unseen, unheard citizens.”

In choosing to highlight a burning issue that has rarely if ever incited passions or been the subject of debate, the CJI was giving voice to what is known to all, lamented by few and left alone by most, untouched and unfixed.

What is worse is that the state of affairs is not a temporary fall in the near term but has become a permanent feature of the Indian system. The predisposition to arrest in the short term rather than investigate for the long haul of conviction is also one of the reasons why many bail cases come to court in the first place and add to the numbers that choke the system.

Further, because arrest and jail are routine, this leads to a rise in anticipatory bail applications from those who are better off and can act to avoid arrest – adding to the load at the higher courts. This makes the entire dynamic a systemic problem that won’t go away just by increasing the number of judges because its root lies in a deeper malaise. We know that our conviction rate is abysmal, so that robust investigation is discarded and pre-trial jail and extended custody becomes the punishment, breaking at its root the entire edifice of the criminal justice system that says an accused is presumed innocent unless proved guilty.

In their 85-page order, Justices S.K. Kaul and M.M. Sundresh on July 11 pointed to the systemic nature of the problem: “Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature, with that of a possible adjudication by way of trial. On the contrary, an ultimate acquittal with continued custody would be a case of grave injustice.”

The state of affairs has nothing to do with the politics of the day, the attitude of a particular set of political leaders temporarily in power or indeed any agenda or grand plan at work. The tyranny of the system lies in its commonplaceness, everydayness and pervasiveness – it’s become one with the air we breathe, the water the fish swim in and it puts behind bars and tends to forget some of the most vulnerable citizens of the nation.

How this breaks the back of the system is not always easily understood or fully grasped. One is that it offers the result of a conviction – without a trial in which evidence is to be whetted and guilt is to be established beyond any shadow of doubt – long before the process of trial and conviction even begins.

In delivering this effect, the State at the level of its most basic and ordinary day-to-day functioning has made the justice system irrelevant, if not redundant. To make matters worse, this is achieved with the help of the judiciary, where remand and more remand is routinely granted, and bail is difficult to obtain because not always are the merits of the case fully discussed or even asked.

If getting custody or an extension of remand is a matter of routine, police take the remand giving judicial authority for granted, and this has the immediate and direct effect on the quality of investigation. In fact, Justices Kaul and Sundresh quote a 2014 judgement of the Supreme Court to note: “Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and magistrates do not authorise detention casually and mechanically.”

They quote further: “The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner.”

In fact, so common is it to grant detention that police officers do not always put in the effort to fill in proper or full details. Sometimes, this feeds into an arrogance among the investigating agency that anything goes, derailing at an early stage the most critical part of the investigation – which must be thorough, fair and executed in a timely manner. It also emboldens the police to get away with custodial violence, another menace growing unchecked despite the many protections to the accused written down in the legal system.

It is therefore not a day too soon that the Supreme Court has now formally asked the Centre to consider bringing a Bail Act. Justices Kaul and Sundresh noted: “We… call on the Government of India to consider the introduction of an Act specifically meant for granting of bail as done in various other countries like the United Kingdom.”

This will clearly be a step forward. While the legal framework can be more specific and lay down firm guidelines on bail, the larger problem is the colonial mindset that continues to rule the Indian bureaucracy, coupled with lack of investments to support those doing good work and a lack of exemplary punishment to those manipulating the system.

This is one place where the courts can and must get active. A proper monitoring of cases right from the remand stage, with a detailed look at whether the demand of the investigating agencies is justified, will set the ground for a more responsive and responsible investigative machinery. It will keep the police on their toes and it will keep our jails less crowded while improving the overall outcomes of the system.

(The writer is a journalist and faculty member at SPJIMR. Views are personal) (Syndicate: The Billion Press)

(This article was first published in National Herald on Sunday.)