Because they do not address the underlying fundamental issue, i.e., "the procedure is the punishment" in all procedures that the state machinery handles. Or mishandles?
This is not the first time that the highest court has pulled up the criminal justice system on the undertrial issue. And it won't be the last. Reminds me of the injunctions repeated by successive Mughal rulers to prevent local officials from harassing traders and travelers.
In any case, undertrials cannot be held for a duration longer than the legal maximum sentence for the alleged offense.
Sadly, the low level of legal awareness is a roadblock.
And even if you know this, it takes ages to get the bribed system moving. Yet, it moves at a snail's pace.
Excellent read on a sad but nonetheless interesting topic I was previously unfamiliar with. I look forward to reading your piece in ThePrint and, of course, watching Damini.
The more I think about the undertrial crisis, the more I wonder if the deeper problem is the broken relationship between society and the system.
Why is genuine reform so difficult?
Perhaps because vested interests are concentrated, organized, and persistent. Public interest is diffused. But a policeman, politician, bureaucrat, or other beneficiary of the existing system has a clear incentive to preserve it. And when that public is further divided along caste, religion, class, or region, it becomes remarkably easy for concentrated interests to divide and rule.
India’s criminal justice machinery illustrates this beautifully. The colonial state built policing and criminal administration primarily to guard public property and ensure state control. Not around democratic accountability or citizen welfare. Independence changed the sovereign, but much of the institutional architecture survived.
The social consequences are hardly surprising. Quoting from census and NCRB data, the Frontline magazine reported in 2016 that Muslims, Dalits, and Tribals, who together constituted about 39% of India’s population, accounted for over 55% of undertrials. And 50.4% of convicts (https://frontline.thehindu.com/cover-story/systemic-bias/article9319130.ece).
Reform is tough even when its necessity is out in the public domain. The Soli Sorabjee Committee report in 2006 on Police Reforms aimed to free the police from political interference and establish accountability. It was ignored by state governments across the political spectrum. No politician willingly abdicates control over the state's most potent instrument of force.
As Officer Bud White (Russel Crowe) rawly puts it in L.A. Confidential (1997): "I'm just the guy they bring in to scare the other guy shitless." The system retains that exact utility today.
This also explains the strange resilience of the parallel systems that grow around a dysfunctional formal system. Police stations are discouraged from registering complaints because a high number of cases reflects badly on their performance. But the same machinery can selectively register cases when doing so serves some powerful interests. Such discretion, when weakly accountable, becomes power.
Which brings me back to independence.
We overthrew an external ruling class, but did we sufficiently transform the machinery through which rulers exercise control over the ruled? The colonial laws have now been replaced in several areas, but institutional habits and concentrations of power are harder to legislate away.
This may explain an interesting historical pattern. Diffuse public interests can defeat concentrated vested interests during revolutions and periods of great political change. But that victory is often temporary. The very institutions created after the revolution generate new concentrations of power, which eventually learn to defend themselves.
So perhaps social reform and systemic reform are neither chicken nor egg. They are a feedback loop. Society shapes institutions, and institutions shape society.
Breaking that loop requires sustained public pressure across social divisions. Gandhi’s idea of class collaboration may have some relevance here. Durable reform requires different sections of society to recognize their common stake in changing the rules of the game.
Eternal vigilance is, after all, the ultimate price you pay for freedom. Genuine and sustained freedom, that is.
These developments might offer some temporary respite:
1) https://theprint.in/judiciary/in-uapa-bail-cases-trial-will-take-time-is-losing-currency-courts-are-saying-not-indefinitely/3043044/
2) https://www.livelaw.in/top-stories/supreme-court-refuses-bail-undertrial-incarcerated-eight-years-548412
3) https://theprint.in/judiciary/tihar-superintendent-faces-contempt-for-delaying-undertrials-release-in-wilful-violation-of-hc-order/3045228/
No permanent relief, though.
Because they do not address the underlying fundamental issue, i.e., "the procedure is the punishment" in all procedures that the state machinery handles. Or mishandles?
This is not the first time that the highest court has pulled up the criminal justice system on the undertrial issue. And it won't be the last. Reminds me of the injunctions repeated by successive Mughal rulers to prevent local officials from harassing traders and travelers.
In any case, undertrials cannot be held for a duration longer than the legal maximum sentence for the alleged offense.
Sadly, the low level of legal awareness is a roadblock.
And even if you know this, it takes ages to get the bribed system moving. Yet, it moves at a snail's pace.
1) https://blog.ipleaders.in/maximum-detention-of-an-undertrial-and-release-section-479-bnss/
2) https://www.orfonline.org/research/justice-system-in-crisis-the-case-of-india-s-undertrial-prisoners
Sadly, this is one of the things that makes us a "third-world country" and holds us back in that category.
Excellent read on a sad but nonetheless interesting topic I was previously unfamiliar with. I look forward to reading your piece in ThePrint and, of course, watching Damini.
Diligently researched and compiled!
The more I think about the undertrial crisis, the more I wonder if the deeper problem is the broken relationship between society and the system.
Why is genuine reform so difficult?
Perhaps because vested interests are concentrated, organized, and persistent. Public interest is diffused. But a policeman, politician, bureaucrat, or other beneficiary of the existing system has a clear incentive to preserve it. And when that public is further divided along caste, religion, class, or region, it becomes remarkably easy for concentrated interests to divide and rule.
India’s criminal justice machinery illustrates this beautifully. The colonial state built policing and criminal administration primarily to guard public property and ensure state control. Not around democratic accountability or citizen welfare. Independence changed the sovereign, but much of the institutional architecture survived.
The social consequences are hardly surprising. Quoting from census and NCRB data, the Frontline magazine reported in 2016 that Muslims, Dalits, and Tribals, who together constituted about 39% of India’s population, accounted for over 55% of undertrials. And 50.4% of convicts (https://frontline.thehindu.com/cover-story/systemic-bias/article9319130.ece).
Reform is tough even when its necessity is out in the public domain. The Soli Sorabjee Committee report in 2006 on Police Reforms aimed to free the police from political interference and establish accountability. It was ignored by state governments across the political spectrum. No politician willingly abdicates control over the state's most potent instrument of force.
As Officer Bud White (Russel Crowe) rawly puts it in L.A. Confidential (1997): "I'm just the guy they bring in to scare the other guy shitless." The system retains that exact utility today.
This also explains the strange resilience of the parallel systems that grow around a dysfunctional formal system. Police stations are discouraged from registering complaints because a high number of cases reflects badly on their performance. But the same machinery can selectively register cases when doing so serves some powerful interests. Such discretion, when weakly accountable, becomes power.
Which brings me back to independence.
We overthrew an external ruling class, but did we sufficiently transform the machinery through which rulers exercise control over the ruled? The colonial laws have now been replaced in several areas, but institutional habits and concentrations of power are harder to legislate away.
This may explain an interesting historical pattern. Diffuse public interests can defeat concentrated vested interests during revolutions and periods of great political change. But that victory is often temporary. The very institutions created after the revolution generate new concentrations of power, which eventually learn to defend themselves.
So perhaps social reform and systemic reform are neither chicken nor egg. They are a feedback loop. Society shapes institutions, and institutions shape society.
Breaking that loop requires sustained public pressure across social divisions. Gandhi’s idea of class collaboration may have some relevance here. Durable reform requires different sections of society to recognize their common stake in changing the rules of the game.
Eternal vigilance is, after all, the ultimate price you pay for freedom. Genuine and sustained freedom, that is.