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Pretrial Detention in India: an Examination of the Causes and Possible Solutions

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The average rate of pretrial detention in India is 20 per 100,000 of the general population, which is less than half the global average. However, as of 2013, the number of pretrial detainees as a proportion of all prisoners is 67.6 %—over twice the global average. This article seeks to understand the causes of such a high proportion of pretrial detention. Answering this question will help evaluate the present governmental response to the problem of pretrial detention. The article begins by examining the laws and practice of pretrial detention in India and then tries to explain the disjuncture between the two by analysing, first, the role of various functionaries, namely the police, prosecutors, judiciary and prison officials; second, the profile of the pretrial detainees and their (in)ability to post bail and, finally, the (in)effectiveness of the existing legal aid system. It posits that while partly a result of relatively low overall convict populations, the high incidence of corruption; shortage of human, physical and monetary resources and governance and lack of coordination contribute to the high number of pretrial detainees in the prison population in India. It then concludes by describing existing solutions and referencing the practice in Pakistan and Bangladesh, which face similar problems and have similar laws and institutional structures.

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  1. International Centre for Prison Studies (‘ICPS’), World Prison Brief, <>; Roy Walmsley, World Pretrial/Remand Imprisonment List, ICPS, 2nd edn, <>.

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  3. Writ Petition (Crl.) Nos. 310/2005, order of the Supreme Court of India dated 5th September 2014.

  4. Somewhat unsurprisingly, criminal codes in India, Pakistan and Bangladesh originate from the same source, Lord Macaulay’s Indian Penal Code of 1860 and the Code of Criminal Procedure (CrPC) of 1898. Hence, they share concepts of ‘bailable’ and ‘non-bailable’ offences (bail as a right and at the judge’s discretion, respectively); ‘pre-arrest’ bail and ‘cognizable’ and ‘non-cognizable’ offences (the power to arrest without or with a warrant, respectively).

  5. Muhammad Waheed, Victims of crime in Pakistan, The 144th International Senior Seminar Participants’ Papers, United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders, <> at 144.

  6. NCRB, Prison Statistics India—2012, at chapters 3–4.

  7. Arnesh Kumar v State of Bihar, (2014) 8 SCC 273. The Court clarifies that before authorising the detention, the Magistrates must ‘record [their] own satisfaction’, however brief, although the satisfaction ‘shall never be based on the ipse dixit of the police officer’.

  8. State of Rajasthan v Bal Chand, AIR 1977 SC 2447, at para 2.

  9. Mantoo Majumdar v. State of Bihar, AIR 1980 SC 846.

  10. After 38 years in jail, man starts life at 70, Times of India, 23rd April, 2006, <>.

  11. RD Upadhyay v State of Andhra Pradesh, 2007 (15) SCC 337.

  12. Article 22 of the Constitution of India.

  13. Sections 107, 109 and 110, CrPC.

  14. Section 116, CrPC.

  15. Human Rights Law Network, National Consultation on Prison Legal Aid, April 2013, <>.

  16. UNDP-MARG, Needs Assessment Study of the Legal Services Authorities in the States of Madhya Pradesh, Jharkhand, Bihar, Uttar Pradesh, Odhisha, Rajasthan and Chhattisgarh, Government of India (2012), <> at 131.

  17. As per the Bureau, there is one police officer for 761 persons, against a sanctioned strength of one officer for 568 persons. Conversely, there are 47,557 officers guarding 14,842 protected persons (Bureau of Police and Research and Development 2012; Zee Media Bureau 2013).

  18. For further details see Mrinal Satish, Bad Characters, History Sheeters, Budding Goondas and Rowdies: Police Surveillance Files and Intelligence Databases in India, 23(1) Natl. L. School of India Rev. 133, 143 (2010).

  19. (1994) 4 SCC 260.

  20. Sections 41 and 41A of the Criminal Procedure Code, which were amended in 2008 and 2005, respectively.

  21. Sections 3 and 17 of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, [Immoral Traffic Offenders, Slum-Grabbers and Video or Audio Pirates] Act, 1985 (hereinafter, ‘Karnataka Goonda Act’). See <> for the amendment.

  22. Section 2 of the Karnataka Goonda Act, 1985.

  23. R.K. Saxena, Catalyst for Change: Effect of Prison Visits on Pretrial Detention in India, Open Society Justice Initiative, Spring 2008, <> at 60.

  24. See Bureau of Police, Research & Development, Data on Police Organization in India, Ministry of Home Affairs, 2012, <>, at 3, 112. See also Zee Media Bureau, Police to people ratio: 3 cops for every VIP but just 1 for 761 commoners, Daily News & Analysis (DNA), 25th August, 2013, <>.

  25. Id.

  26. However, they provide legal services and opinions to the Central Bureau of Investigation. See UNAFEI, The Relationship of the prosecution with the police and investigative responsibility, 107th International Training Course: Reports of the Course, < at 309.

  27. Sections 436 and 436A of the Criminal Procedure Code, 1973.

  28. The Constitution divides matters into union lists, state lists and concurrent lists based on which entity (the centre or the states) has jurisdiction to legislate on those matters. Prisons are on the state list and criminal law on the concurrent list.

  29. Stanley Pinto, Amnesty India mulls bail fund to rescue undertrials, The Times of India, 8th January 2014, <>.

  30. HRLN, supra note 15.

  31. A UNDP study on the needs assessment study of various LSAs found that many of the Taluk and District level LSAs lacked telephones, computers, vehicles and support staff (including for accounts). UNDP-MARG, supra note 16, at 131.

  32. UNDP-MARG, supra note 16, at 5.

  33. UNDP-MARG, supra note 16, at 6, 132.

  34. UNDP-MARG, supra note 16, at 131.

  35. NJP Implementation Cell, Lahore High Court, <>.

  36. UNDP-MARG, supra note 16.

  37. UNDP-MARG, supra note 16, at 118.

  38. UNDP-MARG, supra note 16.

  39. GIZ, SPSS Project, 2013, <>.

  40. Saxena, supra note 23, at 67.



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The author would like to thank Mr. Martin Schönteich, Dr. Aparna Chandra, Mr. Nauman Asghar and the peer reviewers of this article for their support and assistance. Research for this article was supported in part by the Open Society Internship for Rights and Governance, which is funded and administered by the Open Society Institute (OSI). The opinions expressed herein are the author’s own and do not necessarily express the views of OSI.

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Correspondence to Vrinda Bhandari.

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Bhandari, V. Pretrial Detention in India: an Examination of the Causes and Possible Solutions. Asian Criminology 11, 83–110 (2016).

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