Almost 70% of India’s prisoners have not been convicted of any crime. We cannot call ourselves a civilised nation unless we solve our undertrial problem.
We have a devil’s compact with the State.
That which we value most–life and liberty–we entrust to the state, by granting it a monopoly over the legal use of violence, the power to take away our liberty, and in extreme cases, even our lives. In so doing, we trust that the state will behave as a fair custodian of the very basis of our being.
Credible jurisprudence requires that the state takes this responsibility seriously. Hence, our courts of law believe us to be innocent until held guilty; guilt has to be proven beyond reasonable doubt; and in most countries, death is a judgement pronounced only in cases of the most extreme violence.
The alternatives to monopolistic state power are horrible. They existed. In his magisterial work, The Better Angels of Our Nature, Steven Pinker traces the long arc of declining violence across the globe. One of the major causes, he asserts, is the emergence of the nation state. Through history, humans looked to stronger humans to protect them. These stronger individuals, whether chieftains, feudal lords or kings, battled other chiefs, lords and rulers at the borders of the domain while maintaining peace within. As these domains evolved into kingdoms, and eventually nation states, they grew more expert at maintaining internal law and order; and more recently, at negotiating peace across borders. The secular decline in violent deaths has been particularly sharp over recent centuries, and most marked after World War II.
The nation state is still an evolving form, and its ability to enforce the rule of law varies vastly, from the benevolent efficiency of the Nordic nations to the shambolic state of affairs in Venezuela and Zimbabwe. India ranks about half-way down the ladder, according to the annual World Justice Project’s rankings.
A Dubious Distinction
Where we top the global charts is in the percentage of prisoners who have not yet been convicted. Between 67% to 70% of Indian prisoners have not been convicted of any crime. Compare this with 16 % in Russia, 21% in the US, and even 40% in Mexico, and it is apparent that, once we are charged, the Indian state is quite loose with our liberty. In India, we call these prisoners ‘undertrials’, and the phenomenon is so powerfully Indian that many dictionaries classify the word as an Indian noun.
Mercifully, the overall Indian incarceration rate is low; but then, so is violence. I would attribute this to deep cultural issues, rather than the state’s ability to maintain law and order. The evidence certainly does not suggest a particularly efficient police force.
The global organisation, Amnesty, sent RTI applications to prisons across India to try and understand the dynamics behind the undertrial phenomenon. 154 prisons responded, and Amnesty India tallied 82,334 instances between September 2014 and February 2015 when undertrials (that uniquely Indian word!) were not produced in court for want of police escort.
Compare this with a total prison population of just over 400,000 prisoners. Justice for a huge swathe of prisoners was delayed because of the lack of state capacity in the most basic of tasks–to take the accused to court.
“The overuse of pre-trial detention effectively punishes people before they are convicted, and makes a mockery of their right to be presumed innocent until proven guilty,” said Leah Verghese, Senior Campaigner and Researcher, Amnesty International India.
Knowing India as we do, justice is not universally delayed. The rich, or the lynch mobs backed by politicians in power, get bail in short order. The poor, and the Dr Kafeel Ahmeds, remain behind bars. Chief Justice Bhagwati quoted US Justice Brennan thus:
Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down… democracy’s very life depends upon making the machinery of justice so effective that every citizen shall believe in an benefit by its impartiality and fairness.
I churned the available data to make sense of the undertrial numbers. My limited grasp of statistics suggests that the average Indian undertrial is held for 10.5 months. During this time, a citizen, who may well be innocent, is separated from family, is at high risk of torture, even death, and is certainly exposed to over-crowding and ill-health. Only 45% of Indian prisoners are ever convicted of their crimes.
This means that right now, over 200,000 Indians are being denied almost a year of liberty, though they will be held innocent. These 200,000 people, and their families, and their communities, will be right to believe that the denial of liberty is capricious, rather than considered. These numbers make a mockery of justice, and our belief in our nation-state.
The legitimacy of the state should be the concern of all citizens. But it needs to be earned, not asserted. Justice is the very cornerstone of democracy. Among all the competing bids for more state capacity, it is our nation’s ability to dispense justice justly that must be prime.