Constituting an estimated two-thirds of the country’s prison population, undertrial prisoners are a substantial burden on jails, many of which are known to be running at over 100% capacity. Concerns over hygiene and safety are now growing in the COVID-19 situation, which demands social distancing and cleanliness.

But, as a recent study on the decision-making process of bail reveals, it is “entirely discretionary” and “rests heavily in the hands of judges of lower criminal courts.”

The study, “Re-imagining bail decision making: An analysis of bail practice in Karnataka and recommendations for reform”, was conducted by not-for-profit Centre for Law and Police Research, supported by the Azim Premji Philanthropic Initiatives.

Conducted through in-person court observations in different magistrate courts and based on a review of court records of criminal cases in Bengaluru, Tumakuru, and Dharwad, the study found that the nature and classification of offences, punishment prescribed, and availability of effective legal representation have a substantial impact on decisions to detain an accused.

More SLL offences

The researchers engaged with cases in lower criminal courts in the three districts at the ‘pre-trial’ stage - when the accused is first produced after arrest. From the court observations, they noticed that Special and Local Law (SLL) offences constitute a substantial portion of the docket in the lower criminal courts. “On first production, bail was granted in only one-tenth of those cases in comparison to offences under the IPC. The rate of detention and the period of detention for persons accused of SLL offences is significantly higher than IPC offences. In Bengaluru, IPC cases formed a majority of the composition of first production cases and bail was more frequently granted to IPC offences over SLL offences, the report said.

Bail was granted at a lower rate to non-bailable cases in Bengaluru and Dharwad as per the court observations study, while in Tumakuru, bail was granted more in non-bailable cases. “Significantly, in all three districts, bail was not granted by the courts even in some bailable cases where bail is a matter of right, and accused were remanded to either judicial or police custody. Across the three districts, the rate of bail was high in case of offences punishable with imprisonment of one to three years. At first production in Bengaluru, a higher sentence prescribed for an offence meant a lower chance of securing bail and no person accused of an offence punishable with death or life imprisonment secured bail,” it added.

The study, among other things, concludes that classification of offences as ‘serious’ and ‘non-serious’ must be revisited to ensure that bail is granted early on in the pre-trial stage.

‘Find non-custodial ways’

Sudhir Krishnaswamy, founder trustee of CLPR and Vice-Chancellor, National Law School of India University, told The Hindu the study shows that a large number of undertrials are paying for relatively minor offences, and for relatively short periods of detention. “If you send them into the system now with the COVID-19 risks, you will get a very high infection rate. The policy upshot of the study is that you must not send people in for these short durations. We have to distinguish between convicts and undertrials. So, at least with the undertrials, there can be a policy that we don’t send them to custodial detention and the police interrogation and inquiry can continue,” he said.

The study mentions how Bengaluru has only three jails, including one in Bengaluru Rural, despite being the fifth most populous urban area in India. Dharwad and Tumakuru have five and four jails respectively. But Prof. Krishnaswamy says there are two ways of looking at this situation: “One is that you find ways to deal with people in a non-custodial way, and the other is that if you are going to put people in custody, you have to ensure minimum conditions. But from experiences around the world, increasing prisons is an expensive and partial solution. People who are not a physical harm to society need not be in custody.”

Simpler protocol

To begin with, Prof. Krishnaswamy said, a simple protocol can be put in place that all judges making bail decisions should apply. “What is happening today in bail decision making is quite erratic by geography and offence. We need to standardise. We have not systematised our bail decision making in over 100 years. This is what we need to do immediately, through which we will benefit in the number of people in custody and the COVID-19 situation,” he added.