Why India's undertrials continue to languish

There is evidence in data. Our prisons are indeed teeming with people waiting for the completion of trial or investigation, also called undertrials. Globally, one in three prisoners are undertrials. In India, three out of four, or about 77% of the total prison population in 2021, were undertrials. That’s a rise of eight percentage points since 2019.

You can blame the pandemic, which wreaked havoc on the justice system. Prisons across India are witnessing a decade-high occupancy rate even as the courts disposed of cases at a significantly lower pace during covid-19, show the findings of the third India Justice Report (IJR), released today.

As the pressure on physical infrastructure mounted, the system took to technology to make up for shortfalls during this period. Courts adopted e-filing and virtual hearing. More jails equipped themselves with video-conferencing with increasing restrictions on moving inmates from prisons to courts for physical appearances.

The IJR 2022, coming two years since the publication of the previous edition, captures not just pandemic-specific developments but also issues such as high vacancy, lack of diversity and low spend on training that have plagued the system for long. The study was conducted by Tata Trusts in partnership with the Centre for Social Justice, Common Cause, Commonwealth Human Rights Initiative, DAKSH, TISS–Prayas, Vidhi Centre for Legal Policy and How India Lives.

Using the latest official statistics, the report assesses the different pillars of justice delivery system—judiciary, police, prison and legal aid. These pillars have been analyzed through the lens of budget, human resources, diversity and infrastructure.

“The justice delivery system is not keeping up with the valid needs of our population," said Maja Daruwala, editor and convener of IJR, while summarizing its findings.

“The jolt that the pandemic gave the whole governance system was an opportunity to reset the system, genuinely revamp it with radical innovations that align the system to fulfill people’s genuine needs.Even within the financial constraints of Centre and state, there is a huge amount that can be done to make the system swift and fair," she added.

Few policemen, fewer judges

First things first. The major roadblock in ensuring an effective justice delivery system is that we do not have enough personnel.

The Law Commission, in 1987, had recommended 50 judges per million population. At 25,773 judges, there are only 19 sanctioned judges per million population today. If this wasn’t bad enough, consider this: not all sanctioned posts are filled, with the vacancy running as high as 48% among high court judges in Rajasthan and 49% among district court judges in Meghalaya. The real strength of judges is just 20,093, which makes it 15 judges per million population!

One upside is that the vacancy for high court judges has decreased from 38% in 2019 to 30% in 2022. Except for Guwahati and Sikkim high courts, no other high court has filled its sanctioned posts as of December 2022. At the district level, no state or union territory (UT) but Chandigarh passes this test.

The situation is no better in the police. Against the international standard of 222 policemen per lakh population, the ratio in India is just 153. At 29%, the vacancy at the officer level is seven percentage points higher than at the constable level. The overall vacancy in the police force has increased a bit since IJR2, from 20% in 2020 to 22% in 2022.

Except for Nagaland, no state or UT has filled its sanctioned strength at the constable level. The vacancy runs as high as 44% in West Bengal. At the officer level, Sikkim is the only exception to have more officers than sanctioned. Bihar is on the other extreme, with a vacancy of 54%.

Glass ceiling is firm

Scarce human resources apart, we fare poorly on the criteria of diversity, too.

The union home ministry, from time to time, reminds state governments to increase the strength of women police force to 33% of the total staff. No state meets this cutoff. Andhra Pradesh (22%) and Bihar (21%) come closest, with the national average at a gnawing 12%. The situation is dire at the officer level, with the share of women dropping to 8% at an all-India level.

The aim is to have three sub-inspectors and 10 constables in every police station so that a women help desk is manned round the clock. While several states can boast of more than 10 constables per police station, on an average, only Delhi has the required number of sub-inspectors. Leave aside the 24*7 availability of women police at the desk, there are still 28% police stations in the country with no designated women help desk at all. Meghalaya has no women help desk in any of its police stations. Nagaland, Tamil Nadu, Jharkhand and Bihar have women help desks in less than 50% of their police stations.

The trend in the judiciary is somewhat more encouraging. There has been a steady rise in the share of women judges, especially in the lower courts. The share of women judges in district courts rose from 30% in 2020 to 35% in 2022. The rise was more muted in high courts, from 11% in 2020 to 13% in 2022.

A far lower share of women at the levels of both high court judges and officers is emblematic of the glass ceiling. Caste is an issue, too. There is a lower representation of scheduled castes (SC), scheduled tribes (ST) and other backward classes (OBC) at the officer level than within constabulary in the police.

Further, more states and UTs meet their OBC quota than SC and ST quotas, in both the police and district-level judiciary.

The state-level data on caste diversity in high courts is not available, but the aggregate figures paint a grim picture. Of the 537 judges appointed to the high courts from 2018 to 2022, only 1.3% were ST; 2.8% were SC; 11% were from the OBC category and 2.6% were from other minority communities.

Getting there…

One encouraging development is growing digitization and adoption of technology—not quite the facet of our judiciary or bureaucracy in the past.

There was a swift shift towards e-filing of cases, live-streaming of court proceedings and online hearings, with 19.2 million cases heard online and 17.8 million cases disposed of by virtual courts as of April 2022.

And it seems these changes are here to stay. “Sorry, technology is not something for the pandemic. Technology is here to stay for the future, forever," said DY Chandrachud, the chief justice of India, in February this year.

The share of prisons, equipped with video-conferencing, went up from 60% in 2019 to 84% in 2021. This gained importance during the pandemic as prisoners could not be physically produced in courts. Video-conferencing can help bring inmates face-to-face with the courts, at a lower cost. In addition, it can reduce delays in normal times as well. There is little data on the effective use of video-conferencing, though.

Long way to go

In order to check custodial abuse, the Supreme Court passed a series of directions in 2020 for installation of CCTV cameras in 14 different locations inside every police station. However, more than one-fourth of the police stations in the country had not installed even one CCTV camera as of January 2022. Shockingly, Rajasthan had one CCTV in one of its urban police stations.

Cybercrime has been on the rise, especially during the pandemic. They are no longer just a metropolitan phenomenon but have reached every nook and corner of the country, as the Netflix TV series Jamatara shows. And yet, there are 11 states and UTs which have cyber cells in less than 25% of their districts.

The state of CCTVs and cyber cells shows that there is still a long way to go for our justice system in becoming adequately equipped and staying updated with times.

Meanwhile, people responsible for delivering justice also need to update themselves. As of now, there seems to be less focus on that. India spends less than ₹10,000 on a policeman for training in a year. Barely 1.3% of the total police budget, on an average, was allocated for training in 2020-21, with states such as Kerala, West Bengal and Himachal Pradesh spending very little to nothing.

Justice delayed is justice denied

The real test of any system is in its output. And when it comes to justice, there are grave failures.

Consider these astounding numbers: Around 190,000 court cases have been pending for more than 30 years and 5.6 million cases have been pending for over 10 years!

Being understaffed, our courts were always slow in disposing of cases. The pandemic added to their woes, with the number of pending cases rising from 4.1 crore to 4.9 crore between 2020 and 2022.

With such a backlog, a case clearance rate (CCR)—the number of cases disposed of against the number filed in a year—of less than 100% would be unjust. At the peak of the pandemic, the CCR plummeted to 77% for high courts and 62% for districts courts in 2020. The levels have risen since then but there are still below well below 100%.

No wonder our prisons are overcrowded. The occupancy rate of prisons went up by 12 percentage points in 2021, making the situation “critical" in the terminology of the United Nations Office on Drugs and Crime, which classifies 120% overcrowding as “critical" and 150% as “extreme". The situation went beyond extreme in six states and UTs.

A more unfortunate aspect? Over three-quarters of them were undertrials, whose culpability is yet to be proved. Undertrial Review Committees (UTRC) were set up across India at the direction of Supreme Court since 2013 to check unnecessary pre-trial detention. The UTRC, at the district-level, is headed by the district and sessions judge with the district magistrate, superintendent of police, officer-in-charge of prisons and secretary of district legal services authority being its members. UTRCs recommended a release of 42,486 inmates in 2021, but only 39% of them were released.

President Murmu, in her speech at the National Law Day celebrations, questioned the idea of building more prisons to prevent overcrowding. “If we are moving towards progress as a society, then what is the need for building more jails? We should be shutting them down," she said.

The stakeholders have a lot to reflect on.