Friday, December 11, 2020

Some Thoughts after Diving into Prisons Data and Emerging on the Other Side

The National Crime Records Bureau [NCRB] runs the annual Crime in India reports as well as the Prison Statistics India reports. Both get their yearly moment in the sun when, around their publication, news stories with attractive pie charts get published with infographics to show that an unearthly number of cases are pending across the country, that Indian prisons are overcrowded, or that the overwhelming number of prisoners are not convicts but undertrials. The NCRB efforts at logging data came in the news this past week for a different reason — a litigation which resulted in future reports on prisons data carrying details about transgender prisoners as a specific category besides male and female prisoners. 

It so happened that I had spent the past few months working on prisons and prisons data for a project. Reading about the litigation, it struck me that while the project will take some time to come out and is probably yet another lament, it might be useful to talk about the prisons data in some detail, and specifically, about some other areas which the NCRB could perhaps think about including in future editions of its reports besides data about transgender prisoners. I sincerely mean it, because after going through all the Prison Statistics reports over 1995 till 2019, it is a feature of the reports to try and improve upon the clarity with which data is presented (accuracy notwithstanding, of course).

What Kind of Data is Available?

Prison Statistics reports are sources which freeze on a particular frame — 31st December of each year — and then give us information about prisons and prisoners within them. On prisons, we are told about total prisons across the country with explanations behind any change in numbers and specifics about different kinds of prisons; the budgetary expenditure of states on prisons; and the kinds of rehabilitative services, if any, that prisons of different states might have. With respect to prisoners, there is data about the total prisoners at the end of each year, how many of these prisoners are convicts and how many undertrials, and how long is the average prisoner's time in custody. There are also lots of charts, tables, and graphs splicing this data set across various categories: gender, age, caste, religion, educational qualification, etc. All of this data is presented in terms of national figures as well as state-wise figures, which helps to discern the vast differences in the experience of different states. 

Some Notable Macro-Level Trends from 1995 till 2019

Chandra and Medarametla provide some important macro-level trends for data between 2000-2015 in a 2018 study, and much of their findings for this 15 year period are observed even if the data set is extended for the full period from 1995 to 2019. So,

  • Average national prison populations as at the end of each year have been on the rise, except for a curious seven year period between 2003 till 2010 where there were some years of a decline in the end-of-year numbers. This coincided with what were two big amendments to the procedural laws — introduction of plea bargaining (2005), and new restrictions on arrest powers (2008). The seven-year period and any linkages between the amendments and prison populations merits close scrutiny, and I would suggest that any such scrutiny will probably show some initial positive effect of the amendments in emptying out prisons. But, the bump brought by these amendments did not last possibly because of how the slow but steady decline in plea bargaining across India, and police simply going back to their old ways and finding work-arounds to new rules.
  • The national year-end average for population of undertrial prisoners out of total prisoners has consistently been higher than 65% during 1995-2019, and while the seven-year period of 2003 to 2010 showed a decline of sorts, there has once again been a steady rise bringing us to an average of 69% undertrial prisoners at the end of the year. Of course some states and Union Territories had a horrible ratio for throughout this period — Delhi consistently had over 70% undertrials, with 2019 data reporting 82% prisoners were undertrials. But what worried me is that between 2010 to 2020, the gradual increase in undertrial prisoner populations was not attributable to a few states alone but because most states had gone down this path.
  • Reports from 1995 till 2019 suggest that the average length of incarceration for at least 35% of undertrial prisoners is up to three months in jail, and over 60% of undertrial prisoners are in custody for up to six months. This would mean that by the end of the year, which is when the headcount is taken, almost three cycles of prisoners would have been completed. Slowly, but surely, these numbers have changed over the past fifteen years with a reduction in the share of undertrial prisoners in jail up to six months, and an increase in those who are detained for up to a year and above. 
  • The pie-chart indicating the different kinds of offences for which persons are incarcerated as undertrials also reflects broad similarities over twenty-five years — offences punishable under the Indian Penal Code constitute the major share, as opposed to offences punishable by various special and local laws. The reports suggest change and stability within these two sets over time. For instance, Offences against the Body (murder, rape, etc.) are still the main Penal Code offences for which people are jailed, but the share of undertrial prisoners arrested for property crimes such as theft, cheating and forgery has increased.     

The Scope for Improvement

There are a lot of important trends that remain difficult to track in part because of the way data is presented in the reports and in part because the data is simply not presented at all. Towards this, some suggestions are flagged below:

  • Crime in India reports have tracked arrest data on an annual basis for a number of years which gives an indication about how arrests without warrant are made. But at the same time, there is no clear data for police station or court bails to indicate how many of these were cases where persons had a right of bail — either because the offence was "bailable" or because the police did not complete investigation and statutory bail accrued. This makes it difficult to get an idea about how many cases are those where persons end up incarcerated despite having a pure right of bail.
  • For some years from 1995 till 2019, primarily in reports after 2010, there is also about the total number of prisoners admitted to prisons each year with state-wise breakups. But little or nothing has been done with this information, and this is a problem. More details about this figure on total inmates can go a long way in providing a richer picture of incarceration trends. Today we have the National Prisons Information Portal which gives a daily update in broad-level prisons data with a seven-day history. If not the NCRB, then surely the online portal can be improved to not only give more clarity besides telling us how many admissions, releases, and visits take place daily, but also retain that data for longer than seven-day periods allowing researchers to plot trends.
  • The statistics for average duration of custody for undertrials are useful, but we still do not have data linking duration of custody to types of offences. So while we do know that over 50% of undertrial prisoners spend up to six months in custody, we have no idea if certain kinds of offences are over-represented in this bracket. Such information is likely to prove critical for making targeted interventions to amend statutes by either decriminalising conduct or at least making it non-cognizable and / or bailable.  
  • The NCRB data on duration of incarceration creates brackets that begin with a range of "up to 3 months". This is pathetic, in my opinion, because it is a slap in the face of our rhetoric about how each day in fetters is critical. We need to blow up this detail to figure out (a) the length of police custody detention suffered by persons before they go to jail, (b) if the "up to" 3 months is showing greater concentrations around certain days in custody. 
Like I said at the outset, I genuinely think that the NCRB can work to start looking at these and many other trends if it wants to, because the reports over time suggest a willingness to explore and expand the range of data collection and presentation. If arbitrary arrests, overcrowded prisons, and high rates of undertrial incarceration are amongst the most serious problems that trouble the criminal legal process in India, then one way to try and fix them is by acknowledging that each of these issues comprise of a myriad set of problems that can only be identified if we have the right kind of data. Otherwise, it's little more than aiming our shots in the dark.  

Monday, December 7, 2020

Guest Post: End of Justice? The Supreme Court's Order in Hitesh Verma v State of Uttarakhand

(This is a guest post by Prannv Dhawan & Ishwar Singh)

The Supreme Court’s recent judgment in Hitesh Verma v. State of Uttarakhand [decided on 05.11.2020] reversed an order of the Uttarakhand High Court and quashed the case with respect to allegations under SC/ST (Prevention of Atrocities) Act 1989 (‘the Act’). The Court held that insulting or intimidating a person belonging to a Scheduled Caste or Scheduled Tribe (SC/ST) community will not be counted as offence under the Act unless such insult or intimidation is on account of the victim belonging to SC/ST community. We argue that the decision has gone against the settled principles of invoking the power of quashing under section 482 and can act as a major hurdle for criminal trials to take place under the Act.

Factual Background
Before commenting on the reasoning and outcome of this decision, it is important to discuss the factual context and the impugned judgment of the High Court. The petition of the accused for quashing of the chargesheet and summoning order under the Act was dismissed by the High Court as it observed that the offence of insulting was prima facie made out and that the accused had failed to demonstrate any dereliction of duty or irregularity in the police investigation to merit the exceptional remedy under section 482 of CrPC. 

The complainant, a woman belonging to a scheduled caste, got lodged a First Information Report on 11.12.2019 regarding an incident that allegedly happened on her fields where the construction of her house was going on. She alleged that the accused (along with his family members) "entered illegally in to four walls of her building and started hurling abuses on myself and my labourers and gave death threats and used castes’ remarks/abuses and took away the construction material such as Cement, Iron, Rod, Bricks… said that you are persons of bad caste and that we will not let you live in this mohalla/vicinity." She also alleged that the accused (along with his family members) since "past 6 months, [was] not allowing the applicant to work…[gave] death threats and [used] caste coloured abuses". 

The FIR was filed under section 3(1)(e) and section 3(1)(r) but the chargesheet was filed only under section 3(1)(x) [3(1)(x) post-amendments corresponds to 3(1)(r)]. Section 3(1)(e) deals with any act derogatory to human dignity like removal of moustache etc. The constant threats, and forcible taking away of construction material could be covered under the same. However, the legal proceedings were limited to the question of casteist remarks which the police reported to be covered under sub clause (r) that deals with ‘intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.’

The Supreme Court's Reasoning
The Court held that because the remedy under section 482 has been provided for in and applied in cases under the Act, it should be applied in this case as well. Precedents, however, require exceptional circumstances, grave error in investigation or the necessity to meet ends of justice, to justify the grant of this remedy. A three judge bench of the Supreme Court had, in Girish Kumar Suneja v. CBI (2017) 14 SCC 809, clarified the scope of these appeals. In the context of the appeals for revision (s 397, CrPC) and plenary jurisdiction (s 482, CrPC), the Supreme Court held that the revisionary jurisdiction is a discretionary jurisdiction (para 11) for the aid of justice. It also reiterated the principles laid down in Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551 that the power under section 482 of the CrPC should be exercised only in the rarest of the rare cases (Paras 34, 38). Another two judge bench of the Supreme Court, in State of UP v. Banne alias Baijnath, (2009) 4 SCC 271 reiterated the principles on the scope of interference in appeal held in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 to conclude that there must be “very substantial and compelling reasons” to discard the High Court's decision. These principles state that the Court must be extremely reluctant while reversing concurrent findings of lower courts and must intervene only if the impugned order is manifestly unjust and unfair based on erroneous law and facts leading to grave miscarriage of justice (Paras 27-28).

Another aspect which is of paramount importance is the explicit bar to use the power under Section 482 when a prima facie offence is made out from the FIR and other additional material present before the court as held in J P Sharma v. Vinod Kumar Jain, 1986 (3) SCC 67 (Para 51). This is important especially at the stage when the charge-sheet is laid before the trial court and only duty of the court exercising powers under Section 482 is to "prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial" as per State of HP v. Prithi Chand, 1996 (2) SCC 37 (Para 12). Even if the accused is successful in showing some suspicion or doubt, the allegations are to be believed at their face value [Rajiv Thapar and others v. Madan Lal Kapoor, 2013 (3) SCC 330 at Para 28 and Subrata Das v. State of Jharkhand, 2010 (10) SCC 798 at Para 6] and any enquiry as such to ‘probability, reliability, genuineness’ [Rupan Deol Bajaj v. Kanwar Pal Singh Gill, 1995 (6) SCC 194 at Para 23] or ‘truthfulness, sufficiency and acceptability’ [State of Maharashtra v. Salman Salim Khan, 2004 (1) SCC 525 at Para 12] of the material produced should necessarily be relegated to stage of trial. Interestingly, a recent decision by the Court in Arnab Manoranjan Goswami v. State of Maharashtra (Criminal Appeal No. 742 of 2020, delivered after Hitesh Verma) has seemed to clarify the position that the powers under Section 482 must necessarily be exercised to evaluate to find out whether offence has been made out as per the allegations especially in cases where the accused has prima facie been able to establish instance of abuse of process such as ‘weaponized’ use of instrumentality of state (Paras 61 and 62).

The only exception to this bar is when continuity of the criminal proceeding constitutes an ‘abuse of process’ such as when a complaint has been initiated with malice or to cause harm or where allegations are absurd and inherently improbable [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 at Paras 102-103]. The Court, in Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 also states that the cases can be quashed in ‘exceptional circumstances’ when misuse of provisions is established. In this case, there is no evidence for the misapplication of the section, irregularity in investigation or any other infirmity. 

The Court also reasoned that the offence was in relation to a property dispute and not relating to 'indignities, humiliations and harassment’ faced by vulnerable sections of society. Para 13 of judgment states that, "[T]he assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste." However it is trite that the mere existence of prior civil dispute or availability of simultaneous civil remedy alone is not a sufficient ground for quashing as held in Indian Oil Corporation v. NPEC India Ltd, 2006 (6) SCC 736 (Para 12). 

In fact, the Court has in Kailas v. State of Maharashtra, 2011 (1) SCC 793 explicitly noted the historical stigmatisation of scheduled communities and also has recently acknowledged in Union of India v. State of Maharashtra, (2020) 4 SCC 761 that SC/ST informants face various difficulties in getting cases filed. In the present case, the court disregarded the testimony regarding death threats, insult regarding lower caste status and intimidation to pass a judicial remedy enforcing caste amnesia. The Court also presumed that the offence was not on account of the informant’s caste despite the existing complaint and testimony. It is also stated that section 482 is an exceptional revisionary remedy that exists in case a misuse is demonstrated. Hence, a clear problem with this judgement is the low threshold applied in application of section 482. Hence, the Uttarakhand HC dismissal should have been upheld.

In light of the above analysis, the Court’s intervention at the pre-trial stage in a criminal investigation leaves much to be desired. It is hardly surprising that the National Coalition for Strengthening SCs & STs PoA has called for a review of the judgment. The coalition has further pointed out the failure of the police to invoke 3 (1) (u) and 3 (2) (va) of the Act in this case. Considering the ‘abysmally low’ rate of conviction under this social protection legislation, the Court ought to have considered the impact of its judgment on how the law will be interpreted by police and subordinate courts. The grant of the exceptional relief, thus leads to an ‘end of justice’ when no ends of justice were being achieved by the intervention at this stage.