INTRODUCTION
This blog delves into the pressing issue of the growing trend of mass incarceration in India. Incarceration means confinement in a jail or prison i.e. the act of imprisoning someone or the state of being imprisoned[1]. There is a significant, disproportionate, and growing trend of incarceration in India which is due to various systemic factors such as legislative policies, law enforcement practices, and socioeconomic inequalities.
UNDERSTANDING THE PROBLEM
Presenting some thought-provoking statistics to emphasise the seriousness of this issue -According to the Prison Statistics India 2022 report released by the National Crime Records Bureau on December 1, 2023, there are 4,34,302 undertrial prisoners in the country, accounting for 75% of the total inmate population as of December 31, 2022[2]. The National Judicial Data Grid reveals that 28.42% of cases (12,777,598) have been pending for over five years, with 29.34% being criminal cases and 25.62% civil cases[3]. The lack of established laws setting maximum durations for case proceedings has led to prolonged incarceration periods, contributing to prison overcrowding and straining the criminal justice system. As of 2022, the actual occupancy rate in Indian prisons is 131%, exceeding the maximum capacity by 31%.[4]
India ranks fourth globally in terms of its prison population[5]. Observing the statistics it’s obvious that there are many human rights violations in these overcrowded prisons such as:
- Right to due process and access to justice[6]: Overcrowded courts and overwhelmed public defenders result in inadequate legal representation, while limited access to legal resources hinders prisoners’ ability to seek redress for rights violations.
- Right to humane treatment and rehabilitation[7]: Overcrowded prisons lead to substandard living conditions, inadequate healthcare, and limited access to educational and vocational programs, mental health services, and substance abuse treatment, impeding prisoners’ ability to rehabilitate and reintegrate into society.
- Right to freedom of expression and voting[8]: Prisoners face restrictions on freedom of speech, including censorship of communication and access to information, and prolonged undertrial periods compromise their fundamental right to vote.
The impact of mass incarceration is more on certain sections of populations that are disproportionately affected. They suffer more in the criminal justice system due to structural inequalities and inherent biases in the system against them, leading to their overrepresentation in prisons-
- Dalits (scheduled castes)-At the end of 2021, Dalits formed 22.8% of undertrials and 21.7% of convicts, despite comprising only 16.6% of the population according to the 2011 Census[9]
- Tribal communities (scheduled tribes)-Laws are often misused to incarcerate tribal communities fighting for their land, forest, and water rights. Scheduled Tribes made up 10.7% of undertrials and 14.1% of convicts, compared to their 8.6% share of the population[10]
- Economically disadvantaged individuals from low-income backgrounds often lack access to quality legal representation, making them more susceptible to arrest and incarceration. Poverty can also drive involvement in criminal activities, resulting in higher imprisonment rates among economically disadvantaged populations.[11]
- Political Prisoners: Individuals involved in political activism, dissent, or movements for social justice may face arbitrary detention or imprisonment, often under vague or draconian laws such as Sedition (Sec 124(a) of IPC) and Unlawful Activities (Prevention) Act 1967 (UAPA), etc.[12]
WHAT ARE THE CAUSES?
The pre-independence era The Indian justice system has seen little change since its colonial origins, where laws were designed to inspire terror and suppress dissent. The Indian Penal Code (IPC), though unifying criminal laws in India, was founded on biased notions. During colonial times, native Indians were often seen as primitive and incapable of change, influencing the creation of laws and punishments. These outdated ideas have persisted even after independence. For example, the sedition law originally intended to silence Indian dissent against British rule, continued to be enforced for 75 years post-independence. It was only in 2022 that the Supreme Court put it on hold for the government to re-examine this colonial law.[13]
Extended judicial proceedings- The Indian judiciary is notorious for its slow processes, with cases often taking years or even decades to resolve. This delay contributes to the high number of undertrials and prolongs their detention. Data shows 59,716,803 cases have been pending in Indian courts for over 20 years, highlighting the significant backlog and delays within the system[14].
Harsh and monotonous laws- Harsh laws related to narcotics, terrorism, and national security significantly contribute to mass incarceration. The Narcotic Drugs and Psychotropic Substances Act (NDPS), the Unlawful Activities (Prevention) Act (UAPA), and the Public Safety Act (PSA) are often criticized for their draconian nature, leading to prolonged incarcerations. Additionally, preventive detention laws, such as the National Security Act (NSA), allow authorities to detain individuals without trial for extended periods. This legal framework is frequently misused, exacerbating high incarceration rates.[15]
Huge number of undertrial population- According to the latest data from India’s National Crime Records Bureau, three-quarters of Indian prisoners are undertrials, either undergoing or awaiting trial.[16] Amnesty International notes that India has a higher proportion of undertrial inmates than many other democracies, ranking third in Asia in 2017. While the number of convicted prisoners dropped by 22% in 2020, the population of undertrials has surged, with longer pre-trial detentions exacerbating the issue. Madhurima Dhanuka of the CHRI’s Prison Reforms Program highlights the urgent need to address prison overcrowding[17]. Additionally, India’s reliance on imprisonment, mandatory minimum sentences, and the death penalty under the IPC contributes to more arrests and overcrowded prisons.
WHAT COULD BE THE SOLUTION TO IT?
Exploring innovative paths beyond traditional incarceration, several alternatives emerge. Periodic detention, a custodial sentence restricting offenders to prison during specific periods while allowing freedom otherwise, is praised for its job retention, family ties, and safer environment.[18] Additionally, it’s considered cost-effective. Developing non-incarceration options for minors is crucial, focusing on education and rehabilitation. This includes restorative justice, educational programs, and anger management initiatives. Specialized drug courts offering treatment and supervision have shown success globally, notably in Columbia and across all US states and the District of Columbia[19]. Probation and community corrections allow offenders to remain in the community under supervision, with obligations like regular meetings, substance abuse treatment, and community service. Non-compliance can lead to increased supervision or incarceration. Home confinement, with electronic monitoring, offers strict supervision while allowing limited freedom. Finally, restorative justice, focused on healing and repairing harm, emphasizes reconciliation and rehabilitation involving victims, offenders, and communities.[20] These alternatives prioritize rehabilitation and community integration over traditional incarceration, offering diverse approaches to address the complexities of criminal justice.
CONCLUSION
In conclusion, the issue of mass incarceration in India is multifaceted, stemming from systemic factors such as legislative policies, prolonged judicial proceedings, and harsh laws. This trend not only strains the criminal justice system but also leads to human rights violations, particularly affecting marginalized communities and political dissenters. However, by exploring innovative alternatives to traditional incarceration, there is hope for reform. Periodic detention, specialized drug courts, probation, and restorative justice programs offer promising avenues to address overcrowding while prioritizing rehabilitation and community integration. Policymakers and stakeholders must prioritize these alternatives, fostering a justice system that not only punishes but also rehabilitates, ultimately leading to a more equitable and just society.
Author(s) Name: Rashi Singh (NALSAR, Hyderabad)
References:
[1] Merriam Webster, ‘Incarceration’ (Merriam-Webster, 2024)< https://www.merriam-webster.com/dictionary/incarceration >accessed 10 May 2024.
[2] Press Information Bureau, ‘Press Release’ (Press Information Bureau, 2024) <https://pib.gov.in/PressReleasePage.aspx?PRID=1986452> accessed 10 May 2024.
[3] National Judicial Data Grid, ‘The National Judicial Data Grid (NJDG)’ (Department of Justice, 2024) <https://doj.gov.in/the-national-judicial-data-grid-njdg> accessed 10 May 2024.
[4] Live Law, ‘NCRB Releases Prison Statistics India Report 2022’ (Live Law, 2024) <https://www.livelaw.in/news-updates/ncrb-releases-prison-statistics-india-report-2022-243973> accessed 12 May 2024.
[5] World Prison Brief, ‘Highest to Lowest – Prison Population Total’ (Institute for Crime & Justice Policy Research, 2024) <https://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All>accessed 12 May 2024.
[6] Constitution of India 1950, arts 14, 21, and 39A
[7] Constitution of India 1950, arts 21, 42,The Prisons Act 1894
[8] Constitution of India 1950, arts 19(1)(a), 326
[9] The Wire, ‘Indian Jails Undertrial Prisoners’ (The Wire, 2024)< https://thewire.in/rights/indian-jails-undertrial-prisoners> accessed 12 May 2024.
[10] The Wire, ‘Indian Jails Undertrial Prisoners’ (The Wire, 2024)< https://thewire.in/rights/indian-jails-undertrial-prisoners>accessed 12 May 2024.
[11] Vidhi Centre for Legal Policy, ‘Access to Justice in India: An Overview’ (Vidhi Centre for Legal Policy, 2020)< https://vidhilegalpolicy.in >accessed 19 June 2024.
[12] Amnesty International India, ‘India: Sedition Law and Human Rights’ (Amnesty International India, 2021)< https://amnesty.org.in >accessed 19 June 2024.
[13] Prakash N. Y., ‘Legacy of Colonialism in Indian Penal Code: A Critical Analysis’ (2020) 5(2) Indian Legal Studies Journal 45.
[14] Department of Justice, ‘The National Judicial Data Grid (NJDG)’ (Department of Justice, 2024) <https://doj.gov.in/the-national-judicial-data-grid-njdg> accessed 13 May 2024.
[15] Human Rights Watch India, ‘India: Impact of Draconian Laws on Prison Population’ (Human Rights Watch India, 2022) <https://hrw.org> accessed 19 June 2024.
[16] National Crime Records Bureau, ‘Prison Statistics India 2023’ (National Crime Records Bureau, 2023) <https://ncrb.gov.in> accessed 19 June 2024.
[17] Fair Fight Initiative, ‘The History, Causes, and Facts on Mass Incarceration’ (Fair Fight Initiative, 2024) <https://www.fairfightinitiative.org/the-history-causes-and-facts-on-mass-incarceration/#:~:text=Fragmented%20agencies%20and%20a%20lack,and%20established%20by%20President%20Reagan> accessed 13 May 2024.
[18] Centre for Criminology and Justice, ‘Innovative Approaches to Criminal Justice in India’ (Centre for Criminology and Justice, 2019) <https://ccj.org.in> accessed 19 June 2024.
[19] Centre for Criminology and Justice, ‘Innovative Approaches to Criminal Justice in India’ (Centre for Criminology and Justice, 2019) <https://ccj.org.in> accessed 19 June 2024.
[20] Centre for Criminology and Justice, ‘Innovative Approaches to Criminal Justice in India’ (Centre for Criminology and Justice, 2019) https://ccj.org.in accessed 19 June 2024.
