The SC asked states to plan prisons for next 50 years — here’s what we are all missing

Increasing the number of prisons is only half the work to address overcrowding. The other is to tackle the population of undertrials. These 4 charts show why

Last week, while hearing asuo motopetition on the inhuman conditions in prisons, a bench of Supreme Court justices Hima Kohli and Ahsanuddin Amanullah found the overcrowding “stark” and “quite worrying”. “They need to be addressed on top priority,” the bench said and directed states and Union territories to set up committees in each district within a week to prepare a roadmap on the number of jails needed to cater to the prison population for the next 50 years.

Nationally, the share of undertrials has always been more than 60% since 2009. Between 2009 and 2022, it grew from 66% in 2009 to 73% in 2022, touching 78% in 2021.(HT Photo)

Yet, increasing the number of prisons is only half the work done to address overcrowding. The other, less discussed aspect, is tackling the population of undertrials in jails.

On average, in most prisons, the occupancy is nearly 30% over the sanctioned limit, but may go as high as 400%, as was the case in Moradabad district jail, Uttar Pradesh as of December 2022.

Between 2009 and 2022, the total available capacity for inmates increased by 42% but the inmate population increased by 52%.(Arshi Showkat)

In 2009, India’s 1,374 prisons had a sanctioned capacity of 307,052 but actually had 376,969 inmates. Now, we have 1,330 prisons with capacity to hold 430,000 but are holding more than 500,000. Between 2009 and 2022, the total available capacity for inmates increased by 42% but the inmate population increased by 52%.

Historically neglected overcrowding and the growing tendency to deny bail has meant that jails are still filled beyond capacity posing the risk of disease and leading to inhuman conditions.

The top court has repeatedly emphasised the need to decongest prisons. The most successful implementation of such efforts was during the Covid-19 pandemic, when High Powered Committees were formed under the aegis of high courts, which led to more than 60,000 prisoners being released in 2020.

In fact, decongestion mechanisms like Under Trial Review Committees are mandated to continuously identify prisoners who could be released. This crucial mechanism along with others such as the Board of Visitors comprising District and Sessions judge, district magistrate, superintendent of Police and other district officers (like civil surgeon, executive engineer of the PWD; district public health officer) and two social workers are under-utilised. The compliance with judgements from the apex court that instruct the subordinate judiciary to ensure that “bail not jail” is the norm is rarely put into practise.

Even recommendations of parliamentary committees and the Justice Mulla Committee report, also called the All India Committee on Jail Reforms, have largely been ignored by governments and courts.

So, while the mechanism exists, we simply aren’t using it.

But why are there so many prisoners in our jails to begin with?

To wit, during the pandemic, the prisoners released formed just 12.2% of the total number of inmates.

During the pandemic, the prisoners released on the orders of the High Powered Committees formed just 12.2% of the total number of inmates.(Arshi Showkat)

Who is in prison?

It turns out that convicts, or persons found guilty of crimes, comprise only 23% of the total prison population (figure as of December 2022).

This means that only 1 out of every 4 inmates in prisons has actually been found guilty of their crimes by a court of law. In 2009, the share of convicts was 33%. Over 500,000 others who inhabit jails are undertrials — they’re called that because their trials are still going on — and thus, still legally innocent.

Is our justice delivery system incapable of holding criminals accountable in time?

Let’s take a look at some numbers.

According to the most recent data available, the undertrial population is the highest it has been since 2012, nearly doubling from 250,000 to 430,000 at the end of 2022. Convict numbers, on the other hand, have increased by only 4% since 2012.

Nationally, in a worrying trend, the share of undertrials has always been more than 60% since 2009. Between 2009 and 2022, nationally, their share grew from 66% in 2009 to 73% in 2022, touching 78% in 2021. At the end of 2022, nearly all states and UTs reported an undertrial population of more than 60% with Delhi (92%); Bihar (89%) and Odisha (85%) reporting the largest numbers of those awaiting the completion of their trials. In states like Odisha, West Bengal and Bihar, undertrials account for 80% of all prison inmates.

This is the highest undertrial population since 2012; only one in four people in prison is actually convicted of a crime.(Arshi Showkat)

Time spent inside jails has increased too

Data indicates that along with growing undertrials, the duration of their time behind bars has also increased: 22% of undertrials spent 1-3 years in prisons nationally in 2022, an indication that trials are taking longer to complete.

A recent study by Bengaluru-based organisation DAKSH, which works on judicial reforms, pointed out that regular bail applications remained pending for 461 days, about one year and three months. For anticipatory bail applications, it was 339 days, or about 1 year and one month. These were calculated using median calendar days.

The nature of overcrowding changes across different types of jails. Among the 115 central jails, more than half have occupancy between 100-200%. Out of the 353 district jails, 96 have more than 200% occupancy.

Data indicates that along with growing undertrials, the duration of their time behind bars has also increased(Arshi Showkat)

What will solve this?

While the Supreme Court’s order to establish district committees to assess plans for constructing new jails is welcome, building more prisons is merely the beginning. Revamping physical capacity must integrate basic reformative and necessary functions like medical and correctional services. Prisons reflect the incapacities of the justice system like no other sub-system; the culmination of an exceedingly slow and painful process.

The weight of illegal arrests, persistent judge shortfalls, prolonged trials, absence of legal aid, and increasing pendency coupled with attitudes that do not steer toward rehabilitation fall unwaveringly and directly on prisons, and are particularly borne by those languishing in them without being convicted. The problem of overcrowding will persist not only 50 years down the line, but for decades after, if these deficiencies are not remedied.

Arshi Showkat, Nayanika Singhal and Valay Singh work with the India Justice Report, which puts together quantitative assessments of the four pillars of the justice system — police, judiciary, prisons, and legal aid — using only government data. The views expressed are personal