Proactive approach can ease congestion in jails

Upneet Lalli

Deputy Director, Institute of Correctional Administration

Globally, the prison population is increasing and a record 11 million were in jails worldwide. Not only does it have financial costs, it is also affects social cohesion of societies. This increase is driven by a more punitive approach to criminal justice. India too reflects similar trends. The total prison population as per the latest statistics released by the National Crime Records Bureau (NCRB) was 4,78,600 by the end of 2019, an increase of around one lakh from 2009.

Global women prison population was 700,000, around 5-6% of the prison population. In India, women comprise 4.2% (19,081) of the total prison population. The proportion of convict to undertrial prisoners has, however, been almost the same. There were 1,44,125 convicts and the undertrial prison population stood at 3,30,487, that is 69% of the total prison population. A decade back, undertrials were around 66% of the total prison population.

Covid-19 has brought to attention the hazards of prison overcrowding, and its implications for public health. Prisons in over 124 countries exceed their maximum occupancy rate (Global Prison Trends 2020). Imprisonment rates vary between different regions of the world and between different parts of the same region. Haiti continues to be the most overcrowded with 454% occupancy rate. In India, the occupancy rate is at 118.5%, it was slightly better in 2010 at 115%.

The authorised capacity has increased in India over the years and was 4,03,739 with new prisons, and additional barracks. Last year, there were 1,350 prisons while in 2010, there were 1,393 prisons with fewer capacity of 3,20,450 inmates. New prisons have been constructed in a number of states while the old prisons have been shut down. Overcrowding in some states continues to remain high. Tihar prisons had an occupancy rate of 174.9% and UP 168% while it was 150% in Maharashtra and MP prisons. These are also the states that have had relatively more Covid-19 infections in prisons. The overcrowded Arthur Road jail in Maharashtra had reported nearly 182 cases of Covid-19 till last month.

Prison population is influenced by penal policies and also fluctuations in non-convicted (remand) prisoner admission, convicted prisoner admission, length of sentence, availability and use of release mechanisms.

All over the world, the trend indicates that it is the remand prison population and not the convicted prisoners that boost the prison population and results in overcrowding. More than 3 million people are detained as undertrials in the world (Global Prison Trends 2020). In most countries, the proportion of the total prison population who are pre-trial/remand is between 10% and 40% of the prison population. Studies also show that the rate of imprisonment and crime may evolve independent of each other.

Despite some legal changes and judicial interventions, the trend of high proportion of undertrials in India has been continuing over the last 20 years. It is the undertrial population that is the main reason for prison overcrowding. In 2000, undertrials constituted 71.2%, which reduced to 64.7% in 2011 and has now risen again to 69%. This huge proportion of undertrials has implications for the justice system, society and the prison system in particular. Much of the day-to-day management is on their prison admission, production before courts (44,516,79 times in 2019), release and issues of legal aid. Extension of remand period, which is more of a routine exercise is mainly being done through video-conferencing. The number of undertrials released last year was 15,98,218. The movement of inmates to courts for case hearings remains largely restricted these days due to the pandemic.

As per Crime in India, 50,746,34 persons were arrested under the IPC and special and local laws in 2018. It has been repeatedly pointed out that many of the arrests are unwarranted. The police often arrest first and investigate later, resulting in the defendants being in detention for prolonged periods. Police may be prompted to take such action by the pressures to ‘resolve’pending cases and sometimes to fulfil arrest quotas for certain offences.

The undertrials mark their days inside without a calendar and a clock, and hope they will be released on bail or that the trial will conclude soon. Prison officers find it hard to maintain security, as there is not much of disciplinary measures that can be imposed on undertrials. There are no work programmes for a majority who spend their time talking or watching TV. The initial period is the most stressful for almost all age-groups.

Majority of the inmates are in the productive age-group of 18-30 years. Therefore, its economic implications are extremely felt. In case they have a job, they lose it. The stigma reduces their chances of getting new employment. Idleness, lack of work opportunities often reinforce the maxim that idleness breeds discontent and disruptive behaviour. As the period of detention increases, more the chances of earning a degree in crime.

This pandemic is also an opportune time to reflect and review on the use of pre-trial detention. To contain the pandemic in prisons, the first measure is decongestion. A state like Punjab released almost 11,500 prisoners, with 5,000 undertrials being granted interim bail. Since the new remand population is also increasing and the numbers would eventually even out, a prison is a costly sanction. Lok adalats inside prison have been found helpful. Speedy justice for undertrials is essential so that the rule of law remains intact.

Although imprisonment is a major element of the conventional punishment system, the correctional authorities cannot control the flow into prisons. Now is the time to act to adjust detention to cases that comply with the principles of legality, necessity, proportionality and reasonableness. The use of early release programmes along with support to released persons to facilitate successful reintegration into the community has been found effective for crime prevention. This element is missing in India. More importantly, it is also time to start a new stage of a sound criminal justice policy that uses prisons parsimoniously.

Overcrowding in prisons is a recurring theme that need not be inevitable. Crime prevention, restorative policing, decriminalisation of certain offences and non-custodial measures, all aim to limit the number of people coming into contact with the criminal justice system.

Successful strategies must be mindful of past efforts and outcomes as well as the potential for implementing policy changes. A constant dialogue, common understanding and action involving policy-makers, legislators, judges, police, prosecutors and prison authorities will help develop a better action plan. The right balance between protection of society, reparation of the harm done to victims and dealing with the needs of reintegration of the offenders is required.

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