Intertwining Poverty and Crime: The Indian Bail System

By Arvind Pennathur

Being kept in jail is a traumatic experience that has the potential to cast a shadow over an individual’s identity, and change them for worse. However, the law has created a solution to this: the bail system. It enables prisoners to be free upon furnishing security to ensure their presence during legal proceedings. However, for economically weaker sections of the society, it is a source of antagonism and negativity due to its indifference to their lack of resources and daily struggles to survive. In this post, the author aims to highlight how the bail system in India is anti-poor, and how it does not treat those who do not have economic resources fairly.

Poverty and Crime: Closer than You Think

At the outset, it is unfortunate to note that those who are most affected by the bail system are the ones that, systemically, are the ones most influenced to commit crimes. India accounts for almost one-third of the world’s poverty-stricken population, with more than 450 million classified as ‘poor’.[1]

A study published in the Atlantic Review of Economics in 2014 on the impact of various socio-economic factors on crime showed that there is a positive correlation between poverty and criminal activities, and that crime is seen as a ‘consumption smoothening strategy’ that helps people climb out of poverty[2]. Several thinkers such as D Jacobs[3] and Braithwaite[4] also say that a positive correlation exists between property crime and poverty. The rationale is that the benefits of successfully committing a crime outweigh the failure in doing so,[5] which would naturally cause many to dive headfirst into it.

According to the relative deprivation theory, which states that social change is likely to happen when people feel deprived, citizens are more likely to engage in deviant behaviors[6] in order to indicate to the state that they are at the mercy of the system due to their socio-economic position in the society[7]. Jack Levin, a professor of sociology and criminology has discussed a similar trend.[8] There have been several studies that show that where there is a high disparity in economic welfare, there is a high level of violence.[9] A review of 273 studies on that note proves that individuals with low income, occupational status, and education have higher rates of criminal offending.[10]

How is the Bail System Anti-Poor?

1. Lack of Awareness

This is perhaps the first hurdle that needs to be overcome if the bail system is to be improved in any capacity throughout the country. One of the most common reasons as to why there are so many under trials is a lack of awareness of legal rights. According to Angela Sontakke, who was lodged at the Byculla prison for five years, when prisoners asked for even the most basic amenities, the jail staff resorted to violence instead of trying to help them. This is indicative of the fact that even those working at the prisons do not know the rights of the prisoners, let alone the prisoners.Article 39A of the Constitution says that the State has to provide free legal aid to people who cannot afford it due to economic conditions. In the case of Dineshbhai Dhemenrai v State of Gujurat,  the court referred to Article 39A as the ‘guiding star’ and said that it can hardly be disputed that legal aid is among the most basic fundamental rights of a citizen. Furthermore, Section 436A of the Code of Criminal Procedure indicates that prisoners who have spent more than half the maximum time allotted for that crime shall be released on a personal bond with or without sureties.

However, this knowledge is not known by majority of prisoners who are in jail and thus they are under the impression that they do not have legal recourse. This makes the situation worse for those who are heavily affected by poverty, as they have nothing to rely upon. Significant portions of people in custody are entirely dependent on the courts, prison officials and jail visiting lawyers to not only  identify their legal recourses at the earliest possible stage, but also to follow up on it by providing effective legal representation that would prevent them from being confined. In India, prisoners form less than 3% of the persons benefited through legal aid schemes, and this is largely due to them not knowing they have certain options available to them by right.

In the case of Sanjay Dutt v State through CBI, the Supreme Court held that the right to demand bail has to executed at a particular time and that it would not hold good if not exercised after filing of the charge sheet. If the question of bail is raised after, then the bail can only be granted on the merits of the accused. The central issue is the lack of knowledge- if poverty stricken individuals are not aware of their right to bail at the instance of their arrest, then they cannot avail it, which makes for a very unfair picture. Legal awareness is an area which must be closely examined, as it is the starting point from which the right to bail can be easily accessed by society. However, while it’s true that lack of awareness is a huge problem for poverty stricken people, what is more disturbing is their inability to actually pay the bail.

2. Inability to Pay Bail Amount

Even in the cases where the undertrials are aware of their right to bail, they may suffer from an inability to pay the requisite amount. A recent survey shows that India’s top 1% of the population holds 73% of the wealth, while 67 crore citizens comprise the poorer half. These statistics are indicative of a huge disparity among India’s population in terms of income. This means that people who are poor will continue to languish within jail cells due to them not being able to afford the amount. This may result in them relying on loans from various services in order for them to be able to pay for bail. While this sounds perfectly acceptable in theory, practically speaking, the fact that another debt is being created for the accused is problematic, as the accused and the his family will suffer due to the pressure of struggling to pay back the amount, which in turn will affect how they live their lives. In the case of Nanu Gordhan v State of Gujurat,  the judge held that asking a poor man to furnish an excessive bail amount is as good as refusing bail to him.

The inability of the poor to pay bail was explored extensively in the case Hussainara Khatoon and Ors. v Home Secretary, State of Bihar.[11] The petition discussed the fact that people charged for minor offences were confined in jail for extended periods of time due to an inability to pay for bail, and that the judiciary, by not recognizing the differences between the ability of prisoners to pay for bail, is discriminating against the poor. A rich man would be able to escape the prison while the poor man would languish within jail, despite having done the same crime. The judgment highlighted that there were several under trial prisoners who are either unaware of their right to use bail or are too poor to actually take advantage of it and pay the amount.

Bhagwati, while referring to Maneka Gandhi v Union of India[12] mentioned that any system where the poorest prisoners are unable to avail of legal service due to their economic status cannot be said to be ‘fair reasonable and just’.[13] He also says that the prisoners who have been trapped in jail for far longer than necessary should be provided legal aid for the purposes of attempting to attain bail, as there was no reason as to why they should be unjustly detained. He cautioned that it would lead to a domino effect where the people would have no faith in the administrative system and that they would carry ‘a sense of bitterness and frustration’[14] against the larger society for imprisoning them without any legitimate recourse making the system exploitative and in violation to the liberties of people.

An accurate summation of this discussion can be seen in a quote by President Lyndon B Johnson, who, when signing the Bail Reforms Act, 1966, remarked,

“A poorer defendant cannot pay the price. He languishes in jail weeks, months and perhaps even years before trial. He does not stay in jail because he is guilty. He does not stay in jail because any sentence has been passed. He does not stay in jail because he if any more likely to flee before trial. He stays in jail for one reason only–because he is poor…”[15]

In the case of State of Maharashtra v. Sitaram Popat Vital,[16] the Supreme Court held that there were certain considerations that had to be checked in order for bail to be applicable to an individual. These conditions are:

i) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

ii) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant, and

iii) Prima facie satisfaction of the Court in support of the charge.

Furthermore, there may be cases where other matters can be considered, and one such matter is the character, means, standing and status of an individual.[17] Therefore, it would appear that paying capacity of the individual is not a mandatory element that needs to be checked while considering a bail application, which causes the system to be viewed as anti-poor and thus problematic. If an exuberant amount of bail is charged to an individual, then the court is essentially confining him to several years in prison. This can lead to the problem of drastic measures that do more harm than good. There have been reports across the country of ‘professional sureties’ who offer services in exchange for a fee. They will charge a particular amount of the bail asked for by the court.[18] While this may seem like a godsend for economically troubled undertrial prisoners, these sureties engage in murky deals and given that the courts are constantly backlogged, they cannot employ an adequate amount of staff members to verify the functioning of these groups. In the year 2001, there were 57 cases where these sureties were detected and 25 people were arrested for giving false information. The practice has become well known across the country, and as numerous officials have pointed out,  it is an issue that needs to be looked into. In 2013, a 36 year old male was arrested when two middlemen had offered him Rs 2,000 to stand guarantor for an estate agent. Prior to this incident, their aides were arrested, and in total the police recovered 1.3 lakhs of rupees.

Consequences of Detention: The Domino Effect and Alternatives for Bail

A ‘domino effect’ is a term used to describe a series of events that occur when one event leads a series of similar events, and it is unfortunate that the term is commonly associated with bail systems on a worldwide scale. If the chief breadwinner of a house gets arrested and is unable to furnish the required bail due to not having the economic resources, it could possibly give his/her family more incentive to commit crime in order to furnish the amount. Not only could this be disastrous to society as a whole due to the increase in crime, but it could lead to more arrests, leading to the possibility of a family being completely broken down impoverished due to this cycle, and in extreme cases, people may even lose custody of their kids, or lose their houses if they remain in jail, unable to furnish bail.

This effect needs to be taken into account while deciding on bail cases; in a country where the courts are viewed as only accessible to the rich it is imperative that the courts treat the issue of bail as a matter of vital importance. At the moment, they do not take into account the plight of the poor sections of society, and thus are very one dimensional in nature. This can be remedied by incorporating more circumstances to take into account while deciding on bail affairs, such as the current economic status of the accused as well as the consequences of keeping the accused in jail given the same. Such an intrinsic right to a substantive life cannot be curtailed by something as arbitrary as not being able to pay a certain sum of money to the court.

In Hussainara Khatoon,[19] recommendations to implement new bail laws were given. Justice R.S Pathak noted the absence of a provision from the Code that allowed an undertrial to be released without monetary obligations (in appropriate cases).[20] The implementation of such a law, one could argue, would defeat the purpose of bail and would give an easy way out for criminals to get out of paying security for the right. However, if such a law were to be brought into force, the consideration of allowing an accused person to take advantage of the provision would have to be given only on analysis of the totality of circumstances surrounding the individual.

He also said that the deprivation of prisoners for no other reason other than lack of financial sources does not fall in line with constitutional objections of the country, and that it would serve the defense of individual liberty if the legislature considered the addition of such a law in the code.

While at first glance, what he says might seem far-fetched, but when one thinks about it in practicality, it does not take away from the fact that it is a real problem in the country and that a solution for is within the realms of possibility.

[The author is a third-year law student at NALSAR University of Law, Hyderabad.]

[1] ‘Poor’ is defined by the World Bank as those who live below $1.25 a day poverty line set by 2005 International Comparison Programme, World Bank (2008).

[2] Ashish Bharadwaj, Is poverty the mother of crime? Empirical evidence of the impact of socioeconomic factors on crime in India, Atlantic Review of Economics, 1st Volume, 2014.

[3] D. Jacobs, Inequality & Economic Crime, Sociology and Social Research, Volume 66(1), 1981.

[4] J. Braithwaite, Inequality, Crime and Public Policy, London: Routledge 1979.

[5] Supra note 2.

[6] Robert K Merton, Social Structure and Anomie, American Sociological Review, 1938.

[7] Supra note 2.

[8] Elizabeth Evans, Special report: poverty goes hand in hand with crime, The York Dispatch, (Pennsylvania), April 1^st, 2009.

[9] Rosemary Gartner, The Victims of Homicide: A Temporal and Cross National Comparison, American Sociological Review, 1990.

[10] Ibid.

[11] 1980 1 SCC 81.

[12] 1978 AIR 597.

[13] Supra note 11.

[14] Ibid.

[15] Janak Raj Jay, The Death Penalty. Regency Publications (2005).

[16] AIR 2004 SC 4258.

[17] Id.

[18] SK Verma, Afzal Wani, Right to Bail, The Indian Law Institute, Edition 2000, at 166.

[19] 1980 1 SCC 81.

[20] Dr. Janak Raj Jai, Bail Law and Procedures, Universal Publisher’s (2009).