The prolonged detention of undertrial prisoners is the major concern in the Indian criminal justice system. Undertrial prisoner is defined as "a person who has been committed to judicial custody pending investigation or trial by competent authority."[1]

The prison conditions through which these undertrials have to go through many a times leads to violation of their human rights, in addition they put pressure on prison system that is already over-burdened and was meant for retribution and reforms of convicts.[2] Justice P.N. Bhagwati aptly described undertrial prisoners in the landmark Hussainara Khatoon case as individuals who are "lost souls" caught in the "labyrinth of a slow-moving judicial process".[3] These undertrials, presumed innocent until proven guilty, are effectively being punished without a declaration of guilt, violating a fundamental principle of justice.

The issue of undertrial prisoners in India is complex and multifaceted. It stems from various factors including an overburdened judicial system, poverty-induced inability to furnish bail, inefficient bail practices, and lack of legal awareness among the accused. These issues have persisted despite various policy decisions and changes in criminal procedure, as evidenced by the data which shows undertrial prisoners in India's jails have been increasing from the last two decades.[4]

In light of these challenges, this paper argues that adopting pretrial risk assessment or public safety assessments instruments (PSA) could be a transformative step in reforming India's approach to undertrial prisoners. PSA instruments scores people using various factors which reflects the likelihood of pretrial person failure to appear before the court, showing new criminal behaviour or committing violent act if released, etc.[5]

These assessment tools, should form an additional basis for judges when granting bail. These data-driven tools have the potential to address several critical issues plaguing the current system. They could help alleviate the financial barriers that keep many indigent persons in pretrial detention, as they focus on actual risk rather than the ability to execute a monetary bond.[6] Also, these objective tool have the solution to Indian judges reluctance while granting bail to specific caste individuals.

Firstly, this paper will examine the factors contributing to undertrial prisoners plight and analyse how does this problem arises in first place. Secondly, it will explore the evolution of bail jurisprudence with respect to undertrial prisoners. Thirdly, it will explore the critical role of legal aid and its importance in facilitating access to bail. Lastly, the paper would suggest a more accessible and equitable bail system which would rely on evolving tools like Public Safety Assessment (PSA) instruments while granting bail. Innovative approaches may be need of the hour.

The Crises of Undertrials in India

The issue of undertrial prisoners in India is deeply rooted in the country's socio-economic fabric and the structural inefficiencies of its criminal justice system. To understand the magnitude of the problem, it is crucial to examine the available data and the underlying reasons for the high number of undertrial prisoners. Undertrials comprises of 75.8 percent of the total number of prison inmates as per dec 2022 data.[7] Among the undertrials around 26 percent are illiterate, while 38.9 percent have education below 10th standard.[8]

According to the World Prison Brief, India ranks 6th out of 218 countries in terms of undertrial population.[9] These statistics are alarming, especially when compared to other countries in the region and globally.

The reasons for the high number of undertrial prisoners in India are multifaceted:

• Socio-economic factors: A majority of undertrial prisoners belong to lower economic strata and underprivileged sections of Indian society. Most come from rural areas with agricultural backgrounds, and a large number are involved in technical or minor violations of the law.^[10] This demographic profile suggests that many individuals end up in conflict with the law due to situational compulsions or victimizing circumstances rather than hardened criminal intent.
   
• Overburdened judicial system: The number of criminal cases in India has risen significantly over the years, but the criminal infrastructure, including the number of judicial officers, has not kept pace with this increase.^[11] This imbalance leads to prolonged trials and a backlog of cases, resulting in extended periods of pretrial detention.
   
• Poverty and inability to furnish bail: Many undertrials are unable to avail bail simply because they cannot afford to furnish sureties or meet the monetary conditions imposed by courts.^[12] This creates a system where freedom becomes a privilege for those who can afford it, rather than a right for all.
   
• Inefficient bail system: The existing law and practice relating to bail is often inconsistent.^[13] Many times, courts ask for bail bonds too high for the person to pay.
   
• Lack of legal awareness: Many undertrial prisoners are unaware of their rights, including the provisions for bail under sections like 479 of BNSS.^[14]

For the plight of the undertrials, the SC as recognised right to speedy trial as part of fundamental right under article 21, right to life.[15] Despite, this judgement, the implementation has not been as optimistic as one would have hoped. Pre-trial imprisonment amounts to the imposition of punishment before the determination of guilt.[16] The irony is stark - individuals who are presumed innocent under the law are subjected to the harsh realities of imprisonment, to the further extent for periods longer than the maximum sentence for their alleged offense in various particular cases.[17]

Bail Jurisprudence: Evolution and Current State

The concept of Bail is crucial in addressing the challenges of undertrial prisoners in India. The concept of bail in India has its roots in the common law system introduced during British rule and has evolved through legislative amendments and judicial interpretations. The evolution reflects the balance between individual liberty with public safety and the interest of justice.

1. Fundamental principle
The fundamental principle underlying bail is that it is a right in bailable offenses but a matter of discretion in non-bailable offenses. This distinction is crucial, as it forms the basis for judicial decision-making in bail applications. The Supreme Court of India has repeatedly emphasized that "an important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison is an exception." This principle comes from the presumption of innocence and the importance of personal liberty in the Indian legal system. However, the practical application of these principles has fallen short. In a society marked by social-economic disparities, there is a risk that discretionary powers in bail decisions may lead to arbitrary outcomes. Efforts must be made to ensure that subjectivity and variation in bail decisions do not compromise the fundamental rights of the accused.
2. Legislative Evolution
The previous criminal procedure in India has undergone several amendments to address the challenges in the bail system, particularly for economically disadvantaged accused. Important amendments include:
• Code of Criminal Procedure (Amendment) Act, 2005:
  • Section 436 - Granting bail to an indigent person who is unable to furnish sureties; such a person may be released on a personal bond.
  • Introduction of Section 436A for the release of undertrial prisoners after a certain duration of detention.
     
• The Bharatiya Nyaya Sanhita (BNSS), which replaces the old CrPC, introduces further reforms in Chapter XXXV:
  • Definitions of 'Bail', 'Bail Bond', and 'Bond' are now included.
  • Section 479 (previously 436A) improves release conditions for first-time offenders.
  • Mandatory application by the Superintendent to the court after conditions of Section 479 are met.
These changes aim to make the bail system more equitable and efficient. However, their effectiveness in practice remains to be seen.
3. Various Other Factors considered while granting Bail
Most important among them is satisfying the "Triple Test" or "Tripod Test," which includes:
• Flight risk: The likelihood of the accused absconding.
• Tampering with evidence: The possibility that the accused might interfere with or destroy evidence.
• Influencing witnesses: The risk of the accused intimidating or influencing witnesses.
Additional factors often considered include:
• Sufficiency of evidence against the accused
• The gravity and nature of the offense
• Likelihood of the offense being repeated
• Community ties of the accused (as recognized in Motiram's case, AIR 1978 SC 1594)
While these considerations are relevant, their subjective application has sometimes led to inconsistent bail decisions and prolonged pretrial detention.
 
4. The Persistent Challenge of Undertrial Prisoners:
   Despite legislative and judicial efforts, the number of undertrial prisoners in India continues to rise:

Year	Number in Pre-trial/Remand Imprisonment	Percentage of Total Prison Population	Pre-trial/Remand Population Rate (per 100,000 of National Population)
2000	193,627	71.2%	18
2005	237,076	66.2%	21
2010	240,098	65.1%	20
2015	282,076	67.2%	22
2020	371,848	76.1%	27
2022	434,302	75.8%	31

This data underscores the urgent need for effective implementation of bail reforms. The rising percentage of undertrial prisoners since 2005 indicates that legislative changes alone are insufficient to address the problem.

The evolution of bail jurisprudence in India reflects a growing recognition of the need for reform. However, the persistent rise in undertrial populations suggests that more comprehensive solutions are needed. One potential avenue is the integration of Pretrial Risk Assessment (PSA) instruments, which could provide a more objective basis for bail decisions based on the same factors discussed earlier.

Right to Legal Aid: A Crucial Safeguard

The right to legal aid is a fundamental aspect of ensuring justice for undertrial prisoners in India. This right is not merely a statutory provision but a constitutional guarantee rooted in the principles of equality and justice. Article 39A of the Indian Constitution[24] directs the State to provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

1. Importance of Quality Legal Aid Legal aid serves as a crucial safeguard against the miscarriage of justice, especially for those who cannot afford private legal representation. Its importance in the context of bail is paramount:
   • Many undertrial prisoners remain in custody not because they pose a risk to society, but because they lack the means to secure quality legal representation or meet bail conditions.
      
   • Quality legal aid can play a vital role in addressing this imbalance, ensuring that poverty does not become a barrier to justice.
      
2. Development of Legal Aid System in India The journey towards establishing a robust legal aid system in India has been long and marked by significant milestones:
   • In 1972, the Ministry of Law and Justice constituted an Expert Committee on Legal Aid with Justice V.R. Krishna Iyer as chairman. The committee's report, titled "Processual Justice to the People," identified legal aid's clients as the geographically deprived, villagers, agricultural laborers, industrial workers, women, children, harijans, minorities, and prisoners.
   • In 1977, the juridicare Committee, consisting of Justice P.N. Bhagwati and Justice V.R. Krishna Iyer, recommended establishing a National Legal Service Authority at the national level.
   • The Legal Services Authorities Act, 1987, was enacted to fulfill the constitutional obligation under Article 39A, providing the statutory framework for free legal aid to eligible individuals.
      
3. Challenges in Practice of Free Legal Aid The Supreme Court has consistently upheld the right to legal aid as an essential component of fair trial and also made legal aid a constitutional right for all prisoners who are unrepresented due to poverty or indigence. However, despite these provisions and judicial pronouncements, implementation remains a challenge:
   • Quality of legal services: There are concerns about the competence of lawyers provided under the legal aid system. As Vijay Raghavan points out, there is often no mechanism for reviewing the quality of legal services provided to undertrial prisoners.
   • Addressing these challenges is crucial for ensuring that the right to legal aid translates into meaningful access to justice for undertrial prisoners. It requires a multi-pronged approach involving not just the legal fraternity but also prison administrators, police, and civil society organizations.

Current Issues and PSA as Potential Solution

1. Issues:
   • Bias and Subjectivity in Decision-Making: The current system heavily relies on individual judicial discretion, often leading to inconsistent or biased decisions in bail applications.
   • Overreliance on Monetary Bail: This disproportionately affects economically disadvantaged accused, perpetuating a cycle of injustice.
   • Inefficient Case Processing: Backlog of cases and slow trial processes contribute to prolonged pretrial detention.
   • Incompetent Legal Aid: Despite constitutional guarantees, the quality and accessibility of legal aid remain significant concerns.
2. Pretrial Risk Assessment (PSA) Instruments: A Promising Solution Among potential solutions, the adoption of Pretrial Risk Assessment or Public Safety Assessment (PSA) instruments stands out as a particularly promising approach for India. These data-driven tools could revolutionize the bail decision-making process and address several critical issues simultaneously:
   • Objective Risk Assessment: PSA tools use empirical data to calculate the risk of flight or new criminal activity, providing a more objective basis for pretrial release decisions.
   • Reduced Reliance on Monetary Bail: By focusing on actual risk rather than ability to pay, PSA instruments can help mitigate the discriminatory effects of the current bail system on poor accused.
   • Efficiency: These tools can quickly process relevant factors (such as current charges, criminal history, age, and community ties), potentially expediting bail hearings.
   • Consistency: By providing standardized risk assessments, PSA instruments can help reduce inconsistencies in bail decisions across different courts and judges.
   • Data-Driven Reform: The systematic collection and analysis of pretrial data can inform broader criminal justice reforms.

Implementation Considerations in India:

• Judicial Training: Extensive training would be necessary to ensure judges can effectively interpret and apply PSA recommendations.
• Transparency and Fairness: The algorithms and factors used in PSA tools must be transparent and regularly audited to prevent perpetuating existing biases.

Conclusion
The moral dilemma of undertrials in India comes as the most complex and urgent issue that exposes the deep-rooted issues in the criminal justice system and wider societal inequalities. The development of bail jurisprudence is a step in the direction of recognizing personal freedom and the presumption of innocence; however, it is the ever-high number of undertrials who nonetheless symbolize the space between the law and its practical use. Pretrial Risk Assessment or PSA instruments can turn out to be the most promising way out of this crisis.

The data-based assessment tools have the potential to bring a sea change to the bail decision-making process using information that is standardized and fair Nevertheless, the PSA instruments' application must be done consistently. Training is necessary to familiarize lawyers with the use of these tools because it is from this group that the actual decision-making skills come. In addition, the algorithms used and the factors considered should be not transparent regular.

PSA instruments, must be seen as component of an overall approach to reform. It does not stand alone and must, therefore, also accompany other crucial policies, such as boosting the legal aid services, evolving the judiciary, and making necessary legislative changes.

A multi-dimensional approach should be adopted to deal with social issues such as poverty, discrimination, and inequality which will be necessary for large-scale success.

End Notes:

1. Ministry of Home Affairs, The Model Prison Manual (2016).
2. Andrew Coyle, 'Prisons in a Modern Society' in Rani Dhavan Shankardass (ed), Punishment and the Prison: Indian and International Perspectives (Sage Publications 2000) 73.
3. Hussainara Khatoon & Ors. vs. Home Secretary, AIR 1979 SC 1369.
4. World Prison Brief India: Pre-trial/remand prison population: trend (2024) https://www.prisonstudies.org/country/india accessed on 9 September 2024.
5. Christopher Slobogin, 'Presumptive Use of Pretrial Risk Assessment Instruments' (2023) 72 American University Law Review Forum 133-146.
6. It is also not correct to assume that monetary loss is the only deterrant against fleeing from justice. Mithilesh Narayan Bhatt and Shachi Barot Bhatt, 'Bail is the Rule and Jail the Exception: An Inquest of Jurisprudential Factors in Granting Bail to Poor or Deemed Indigent Accused' in Salman Khurshid, Siddharth Luthra, Lokendra Malik and Shruti Bedi (eds), Taking Bail Seriously - The State of Bail Jurisprudence in India (1st edn, 2020, reprinted 2023, LexisNexis 2020) 165.
7. National Crime Records Bureau, Prison Statistics India 2022 (Ministry of Home Affairs, Government of India 2022) 47.
8. ibid 65.
9. WPB, 'Pre-trial Detainees/Remand Prisoners' (World Prison Brief, 2024) https://www.prisonstudies.org/highest-to-lowest/pre-trial-detainees?field_region_taxonomy_tid=All accessed 6 September 2024.
10. Hira Singh, 'Prison Administration in India: Contemporary Issues' in Rani Dhavan Shankardass (ed), Punishment and the Prison: Indian and International Perspectives (Sage Publications 2000) 113.
11. Mukul Mudgal, 'The Problem of Undertrials-II: Kadra Pahadiya and Juvenile Justice' in Rani Dhavan Shankardass (ed), Punishment and the Prison: Indian and International Perspectives (Sage Publications 2000) 202.
12. ibid (n 6) 162.
13. Dipa Dube, 'Judicial Discretion in Grant of Bail' in Salman Khurshid, Siddharth Luthra, Lokendra Malik and Shruti Bedi (eds), Taking Bail Seriously - The State of Bail Jurisprudence in India (1st edn, 2020, reprinted 2023, LexisNexis 2020) 105.
14. The Bharatiya Nagarik Suraksha Sanhita, 2023 (India).
15. ibid (n 3).
16. ibid (n 13) 99.
17. Various examples one among them is the story of Machang Lalung where he had to spent 54 years in jail as an undertrial, where the normal sentence for his accused crime would not be more than 10 years. Parwini Zora, 'Fifty-four years in jail without trial: the plight of prison inmates in India' (World Socialist Web Site, 26 August 2005) https://www.wsws.org/en/articles/2005/08/india-a26.html accessed 9 September 2024.
18. ibid (n 13) 101.
19. Abhishek Manu Singhvi, 'India's Bail Jurisprudence: Need for Urgent and Comprehensive Revamp' in Salman Khurshid, Siddharth Luthra, Lokendra Malik and Shruti Bedi (eds), Taking Bail Seriously - The State of Bail Jurisprudence in India (1st edn, 2020, reprinted 2023, LexisNexis 2020) 1.
20. Mukul Mudgal, 'The Problem of Undertrials-II: Kadra Pahadiya and Juvenile Justice' in Rani Dhavan Shankardass (ed), Punishment and the Prison: Indian and International Perspectives (Sage Publications 2000) 204.
21. Code of Criminal Procedure (Amendment) Act, 2005. Act No. 25 of 2005.
22. ibid (n 14).
23. ibid (n 4).
24. The Constitution of India 1950, art 39A.
25. 'Processual Justice to the People' (May 1973).
26. 'Equal Justice-Social Justice Report' (1977).
27. The Legal Services Authorities Act 1987.
28. ibid (n 3).
29. Vijay Raghavan, 'Undertrial Prisoners in India: Long Wait for Justice' (2016) 51(4) Economic and Political Weekly 17-19.
30. ibid (n 13) 111.
31. ibid (n 6).
32. ibid (n 11).
33. ibid (n 29).
34. ibid (n 6) 175.
35. ibid (n 5).
36. S L Desmarais, J Monahan and J Austin, 'The Empirical Case for Pretrial Risk Assessment Instruments' (2022) 49(6) Criminal Justice and Behavior 807 https://doi.org/10.1177/00938548211041651.
37. ibid (n 5).
38. ibid (n 5).