State & Pace: Criminal Justice in India

Turns out that not just crash courses happen in four weeks, but policies too are made in India in four weeks. Some of them with policy goal as big as fast tracking of justice system in the country.  The Supreme Court’s or Chief Justice of India’s words wouldn’t have probably made a visible impact in a pre-NDA government regime. But these are major affairs now, for these hold the same promise of “good governance” and “efficiency” that BJP government has been promising the country.

High speed winds blow through the justice system this year. Besides the debate on the need and constitution of Judicial Appointment Commission, two other events last week are worth noting. First, Supreme Court’s instruction to the Center to formulate a policy within four weeks to speed up trial in criminal cases, adding that it is not a good sign of democracy and good governance. Second, the Chief Justice of India’s Independence Day address and his comment –

A curious and tragic paradox is that our prisons house more undertrial prisoners than convicts. In almost all central prisons, more than 50 per cent are undertrial prisoners; in district prisons more than 72 per cent are undertrial prisoners. The process itself has become a punishment. As head of judiciary, I cannot feel more pain than that.

– R.M. Lodha,  Chief Justice of India, Independence Day Address

In earlier posts – Indian prisons at a glance & prison reforms in India: a quick history, the issues affecting the system were mentioned. With the recent speech of Chief Justice and the Supreme Court instruction to the center we see current state of these issues and their gravity. The Chief Justice further added –

I was shocked to learn that two lakh criminal trials are pending all over the country which are more than five years old and 40,000 trials are pending which are over 10 years old. In the Supreme Court by the end of the year, over 65,000 cases are pending. These are peanuts compared to what we are seeing all over the country.

In an earlier project, we looked at the numbers for prisoners and crime rate from the NCRB database for the period 2001 – 2010. This post is to plug in some graphs which support the comments by the Chief Justice and also give a sense of the magnitude of the problem.  The other intent of the project was to understand and articulate the kind of criminal justice system that India exhibits, with a theoretical reference to Packer’s models of criminal justice. . Herbert Packer proposes that a criminal process is a function of a value system. This value system characterizes the kind of criminal process that a society has – it can be to control crime (repression of criminal conduct) or it could be oriented towards following a due process which is geared towards fact finding.[1] These two models – crime control and due process, are examined in case of India using empirical evidence. Each of these models has a set of characteristics. I examine if the prison and crime statistics support the characteristics of either of the model.


Graph 1: Prison capacity and prison strength in India during 2001-2010

Graph 1: Prison capacity and prison strength in India during 2001-2010


Graph 2: This graph shows how prison occupancy has changed over the decade (2001-2010) vs. the percentage change in prisoner strength in the same period.

When seen together graph 1 & 2 show a broader picture of how prisoner strength and occupancy has moved over a ten year period. This appears to be a shorter time frame to analyze. However, this is the best dataset available from a government agency (NCRB) for those interested in prisons and criminal justice to look at. It is interesting to note that from 2005 prison strength has shown negative change, which appears to be in line with Chief Justice’s observation on very low conviction rate. The dipping blue trend line in graph 2 could either be that more prisoners were released during the period 2005-2010 versus those who were sent to jail. Or also in a derived way, that conviction rate has shown a drop in the same period. More datapoints would be needed to say the latter.

Graph 3 below shows the percentage of convicted prisoners and undertrials as a part of the total prison population. The second quote above gets an empirical ground with this one.



Graph 3: Percentage of undertrials and convicted prisoners in India during the period 2001-2010.

Next, we move to crime data and look at the cases listed for investigation vs. cases investigated. NCRB records this data for all the states. The graphs here are national figures. Graph 4 shows the cases listed for investigation vs cases investigated. This is a rough measure of police capacity and efficiency. The cases taken up for investigation from the listed is perhaps the only impressive figure in the analysis. It reaches upto 80%.


Graph 4: Cases listed for investigation vs. cases investigated. All India figures from 2001-2010

Then we move on to see that with such a high percentage of undertrials in the prisons across the country, how many of them have access to legal aid. This in our understanding appeared to be one of the major reasons for so many people languishing in prisons without a conviction. Also, this points to the idea of an “accessible justice system” and is a broader measure of that access. 2010 is the year when over 20% of undertrials get access to legal aid. It doubled from 10% to over 20% within a decade. This also builds a ground for more lawyering for the poor and the vulnerable in the country.


Graph 5: Undertrial prisoners with access to legal aid between the period 2001-2010.

In countries with an even higher prisoner population and high rates of incarceration there is a very serious debate going on about the cost of keeping a person in prison. This has also been effecting the sentencing given by judges, where they have often been found to be carefully thinking about the cost of keeping a person in prison if sentenced for imprisonment vs. giving him a sentence which gives a non-prison punishment. We were curious to see how much does it cost in India to keep a person in prison. Graph 5 shows the cost per prisoner per year incurred by the government of India. Approximately Rs. 19,500 was spent per year on each prisoner. Looking at the poverty line consideration of Rs 32/day (which was criticized widely to be too low an estimate; makes Rs 11,680 per year) a prisoner does way too well. And if we consider a dollar a day income i.e USD 1/day (makes Rs 21,900 per year) then too the prisoners aren’t doing too bad.


Graph 5: Cost incurred per prisoner per year between 2001-2010

Let us now look at the conviction rate for IPC crimes for the same period. Graph 6 shows the same. Since the number of undertrials are high and conviction rate very low at about 36% in 2010 it appears that the to be characteristic of a due process model. Due process model relies heavily upon investigations and prosecution. Empirical evidence on investigations indicate that as soon as cases are registered they are followed up. There is little lag in the cases registered and cases investigated in a year. It is difficult to enforce either of the model for India though the system shows a lot of characteristics similar to the due process model.


Graph 6: Conviction rate for IPC crimes between year 2001-2010.


Finally, where does this analysis leave us? If prison system is to be reformed, then it should be examined from the view of procedural and rule based bottlenecks in the system The analysis here demonstrates that overcrowding of prisons is made into a key problem and point of action when reforms are attempted. Whereas, in fact, data suggests that prison occupancy is only 123% which does not appear to be a serious problem of space. If the movement of prisoners into and out of the jails is smoothened out then we can hope to reduce the burden on the prison system. Also, the reason for computing the expenditure on a prisoner in a year is to offer an estimate of what it costs versus other options of sentencing a convict. With this figure, sentencing must be seen in relation with the other likely alternatives that are cheaper and also make effective correction strategy.


[1]Two Models of the Criminal Process, 113 U. Penn. L. Rev. 1 (1964). Herbert L. Packer




Prison reforms in India: A quick history

In our work, we figured that a concise history of prison reforms is hard to find. So, in this post I have pieced together the events that led to improving prison conditions and what came of those efforts. Plus, a schematic on criminal justice system. This should be useful for those who’d like to know the processes involved in commitment of a crime, reporting to the police, investigation, trial and finally conviction. This might also help in just understanding the news better, because in India a typical headline with “chargsheet filed…” is all too common.

Tracing the trajectory of reforms in any sector in India is essentially an exercise in tracking the various committees that Government of India might have setup at different times, particularly since independence in 1947. The state of affairs in the respective sector then is a cumulative effect of these committees over the decades. Prison management too has a similar course. For the present enquiry on prison reform I begin with a study by Dr. W. C. Reckless, an expert on correctional work in 1951, commissioned by Government of India. The study report titled “Jail Administration in India” recommended a revision of outdated jail manuals. This recommendation was supported by the Eighth Conference of the Inspector Generals of Prisons in 1952. A consequence of this was the All India Jail Manual Committee set up in 1957 to prepare a model prison manual. The report suggested wide ranging reforms – latest methods in jail administration, probation, after-care, juvenile and remand homes etc. The report also suggested amendments in the Prison Act 1894 to provide a legal base for correctional work. The committee drafted a Model Prison Manual in 1960. The current prison management is guided by this model prison manual.
The next major development in prison reforms comes after two decades from the development of prison manual. In 1980 a Committee on Jail Reform (Mulla Committee) was set up by Government of India which was to review laws, rules and regulations governing prisons and correctional facilities in India. Situation of women prisoners however had to wait till 1987 when Justice Krishna Iyer Committee was appointed to study the state of women prisoners. It suggested appointment of more women in police force to in view of their special role in tackling women and child offenders.
The concern about congestion of under-trial prisoners in jails features for the first time in Law Commission of India report number 78 published in 1979. But, it seeks solace in the fact that the “problem (is) not confined to India”. The report recommendations for amendment of bail procedure such that it provides for those undertrial prisoners who have difficulty in finding surety for their bail when granted by the court. It also recommended widening the list of bailable offenses. It further suggested that the undertrial prisoners must not be housed in the same prison as convicts. This “contamination” according to the commission leads to deleterious effect on undertrial prisoners.

The most recent exercise in addressing prison reform is the Committee on Reforms of the Criminal Justice System in 2000 to consider measures for revamping the Criminal Justice System. This was a wider exercise which in its effect might lead to better prison system overall. It aimed at “simplifying judicial procedures and practices, bringing about synergy among the judiciary, the Prosecution and Police, making the system simpler, faster, cheaper and people-friendly, and restoring the confidence of the common man”. What is interesting is that this committee rightly identifies a procedural flaw in the trial process in the Criminal Justice System, which builds the need for reform. It states –

The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the Inquisitorial System. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judges do not bother if relevant evidence is not produced and plays a passive role as he has no duty to search for truth. As the prosecution has to prove the case beyond reasonable doubt, the system appears to be skewed in favour of the accused. It is therefore necessary to strengthen the Adversarial System by adopting with suitable modifications some of the good and useful features of the Inquisitorial System.

The committee’s recommendation on measures easing convictions, lowering the threshold of evidence and making confessions made to the police admissible as evidence is of relevance to prison reform. These measures are likely to impact prison overcrowding as well.

An overview of criminal process in India

An overview of criminal process in India

Criminal justice system in India is outlined in the schematic above.  This schematic is necessary to understand the locations in the system where delays, irregularities, deviation from the procedures and other divergences occur. For instance, the accumulating number of undertrials in the prisons is because at the stage of investigation the police of the state generally adopts an “active” approach. This means that the suspect is taken into police custody and then interrogation is carried out. This practice starts building up prison population which further compounds after the chargesheet is filed and a trial process initiated against the accused. At this stage a further clogging happens in the system because many of the accused either do not have wherewithal to arrange for their bail or simply do not have access to legal aid to file for a bail.

Until the filing of chargesheet (See schematic) the process is conducted by police department. They receive complaints and initiate investigations. If the police department is understaffed then it is likely that the investigations will suffer from a higher pendency.

Indian prisons at a glance

Prisons in no country are a thing to showcase. It is the proverbial underbelly of the society which holds within itself all sorts of deviations that aren’t supposed to be a part of the visible spectrum of society. Lately, in India there has been some noises made about prison reforms. Before this, Indians have only known their very popular police officer from the elite Indian Police Services, Kiran Bedi, talk of conditions in prison and the need to approach correction differently. Those talks started and stopped with the popular Tihar Jail. Beyond this, prisons in India have been away from the Indian attention, except when a celebrity or a high profile politician is jail in one of the many central jails.

I found it remarkable that the general public knew very little about the prisons, the prisoners and what goes on inside them. This was the starting point of a three month study on prisons in India where I completed a sort of crash course from knowing about prison administration to the ideas of criminal justice system. This was a fascinating journey which is now in a shape that I can share and hope that some may find it interesting enough to explore further.

My colleague Praveena and I analyzed the National Crime Records Bureau (NCRB) data for prisons and crime to unpack the common refrain of “prison reforms” in India.

Here are some preliminary numbers –

At 25 persons per 100,000 population, India has one of the lowest imprisonment rates in the world. This is worth noting for two reasons – one, that very few people actually go to the prison in India. Conversely, it also implies that conviction rate is low. Second, that this often misleads into an impression that crime rate in India is low. As we investigate later we find that low imprisonment is a consequence of limited policing capacity and correctional infrastructure than crime rate.

Rate of Imprisonment in India (Data Source: UN Global Report on Crime and Justice 1999).

Rate of Imprisonment in India (Data Source: UN Global Report on Crime and Justice 1999).

The following table lists stats are from the annual report – Prison Statistics, India (2012) of the NCRB. The most striking figure is the percentage of pre-trial prisoners as of 2007. Of the total number of people in prisons over 66% are not convicted. They are those whose cases are still under trial. So the actual number of convicts is just about 30% of the number of prisoners!

Prison population 3,76,396
Capacity 277, 304
As on (31.12.2007)
Pre-trial detainees / remand prisoners 66.60%
Female prisoners 4.10%

From the same report, as on 2012, the number of prisons of all types are listed in the table –

Central jails 127
District jails 340
Sub jails 806
Women jails 20
Open jails 46
Borstal schools 21
Special jails 31
Other jails 3

The occupancy rate of the Indian prisons is at an un-threatening and seemingly normal figure of 112%.

As we go further exploring the numbers and attempt to contrast it with the social patterns that the Indian society reflects, we find that knowing prison administration is essential to make sense of why does the police operate the way they do and where the trouble lies in the system. So, the following schematics illustrate prison administration in India.

Prison Administration in India (Credit: Authors)

Prison Administration in India (Credit: Authors)

Every state has a hierarchy of jails – Central Jail, District Jail, Sub –Jail, Women’s Jail, Borstals and Open Jails. Together these are administered by prison department which is staffed by state police personnel and specially trained correctional staff. Figure 2 illustrates this arrangement. The purpose of this schematic is to know various kinds types of skilled personnel that are required to run a correctional facility. The consequences of not having such skilled staff is leading to issues like poor quality living, violation of basic human rights and disease burden (including mental health) in the prisons.

In the next post, we analyze NCRB’s prison and crime data.