File photo | Arnab Goswami, who was arrested for allegedly abetting the suicide of a 53-year-old interior designer in 2018, arrives in a police van to be produced in a court, at Alibaug in Raigad district, on 4 November | PTI
File photo | Arnab Goswami, who was arrested in a suicide case, arrives in a police van to be produced in a court, at Alibaug, on 4 November | PTI

Republic TV chief Arnab Goswami was arrested on 4 November. The magistrate in Alibag remanded him to judicial custody the next day, a departure from the normal practice of police custody for the first 14 days. On 11 November, the Supreme Court heard his bail plea and granted him bail. The bail condition was a personal bond of Rs 50,000, and no surety requirement, which is otherwise a routine bail condition. He was released the same day. Arnab Goswami’s swift release demonstrated how well the justice system can work for those with power and influence.

Somen was not so lucky. I met Somen (name changed), a Bengali construction worker in Bangalore Central Prison in March 2017 when I was researching undertrial detention while working with Amnesty International India. He had been arrested for dacoity along with four locals in October 2014. Somen was granted bail within three weeks on the condition that he produce two local sureties. Being a migrant worker with no local networks, he could not find any sureties. His apathetic lawyer did not try to help him since Somen had no means to pay him. When I got in touch with his lawyer in April 2017, he agreed to find two sureties. After the sureties were produced, the judge refused to release Somen unless he produced an identity document. Somen did not have any. Fortunately, an Aadhaar camp was held in jail after a few months and Somen finally got an identity card. On 23 March 2018, the judge accepted his Aadhaar card and issued a release order. It took four days for the release order to reach the prison and on 27 March, Somen was finally released, three years and five months after getting bail.

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The National Crime Records Bureau (NCRB) data for 2019 reveals that 69 per cent of India’s prison population comprises undertrial prisoners, suspects who are awaiting trial or whose trials are ongoing but there has been no conviction yet. As of 31 December 2019, 3.3 lakh undertrial prisoners were languishing in Indian prisons, which have an average overcrowding rate of 118.5 per cent. Approximately 26 per cent of these undertrials were in prison for more than one year. There is a disproportionate representation of marginalised communities in the undertrial prisoner population. Only 8 per cent are college graduates. Half the undertrial prisoner population is Muslim, Dalit and Adivasi, whereas these communities form 39.3 per cent of the Indian population (2011 Census).


Also read: After Delhi HC ends blanket extension of bail, prison authorities fear rise in Covid cases


India needs urgent bail reforms

A major reason for the large proportion of undertrials in India is the way the current system of bail operates.

A person accused of a non-bailable offence (an offence for which bail can’t be claimed as a right) can be released from custody on bail, on the fulfilment of certain conditions, which are usually the deposit of money and/or the provision of a surety. Judges often insist on a surety being provided by a local, solvent person to mitigate against the possibility of the suspect jumping bail. This requirement is onerous for undertrial prisoners who do not have local networks and social capital. It has also led to the growth of a ‘cottage industry’ in ‘professional sureties’, local residents lurking in court corridors offering to stand surety in return for a quick buck. Although the Code of Criminal Procedure, 1973 (CrPC) does provide an option to release suspects on Personal Recognisance (PR) Bond, this is not commonly used. If a suspect is released on a PR bond, they do not need to deposit cash or provide surety, but still have to appear in court for their hearings. Arnab Goswami was lucky to be given this option. The 268th Report of the Law Commission, released in 2017 examined the provisions relating to bail in the CrPC and recommended that monetary conditions of bail be invoked only as a last resort and proposed that original ID documents be deposited with the court as an alternative to a surety. However, these recommendations have not been incorporated into the CrPC.

There is also a sound financial reason to decongest India’s prisons. These prisons cost us Rs 5,958.3 crore in 2019-20, some of which could be saved if we reduce the proportion of undertrial prisoners. This funnelling of resources into incarceration could be redistributed to implementing non-custodial alternatives like periodic check-ins with the police, participation of reformatory programmes, requirement to not change residences and for crime prevention. The use of risk assessment tools to analyse the risks that a defendant will not return for required court appearances if released can enable judges to make more informed decisions on whether to grant bail and what conditions to impose.


Also read: Covid pushes Supreme Court to fast-track reforms, justice delivery could get smoother


However, bail reform does not seem to be on the reform agenda of the Union government or any of the state governments. The routinisation of undertrial detention has made it a convenient weapon in the hands of state governments and the police to incarcerate critics of the ruling dispensation without having to prove allegations against them. ‘Inconvenient’ journalists, protesters, activists and academics are being held as undertrial prisoners in prisons across India for extended periods. In a fair system, all their cases would be treated with the urgency and consideration that Arnab Goswami’s case was treated with.

Undertrial detention erodes the presumption of innocence and thus must be resorted to in exceptional circumstances. Detaining undertrial prisoners curtails their liberty and should be done only in certain cases — such as when the accused is a flight risk, a repeat offender and when there is an apprehension that they might intimidate witnesses or obstruct the investigation. In all other cases, suspects should be released on bail like Arnab Goswami was.

The author is a graduate of the School of International and Public Affairs, Columbia University and the Research Manager at DAKSH, Bangalore. Views are personal.

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11 COMMENTS

  1. The manner of Arnab Goswami’s arrest should be the norm for all journalists of the country. Those instigating caste riots in Hathrus or inciting crowd in Shaheenbagh should be meted out similar treatment. An FIR against against Arnab should be used to arrest any journalist that the administration desires. And Samit Thakkar should be the example for social media users.

  2. No doubt, the general rule is “Bail, not jail”. But, there is an exception. When the accused is charged of treasonable activity such as the six urban naxals caught after Bhima-coregaon violence, they cannot be released like ordinary criminals.

    • Arnab Goswami is more than a traitor he is Anti-India and a pure misanthrope. The problem was MAharashtra govt didn’t filed right FIR against him which is of spreading communal disharmony and blatant sexism and casteism. He should be imprisioned for life.

  3. sorry
    Your article is starting from bias—your article starts with the line——Republic TV chief Arnab Goswami was arrested on 4 November. The magistrate in Alibag remanded him to judicial custody the next day, a departure from the normal practice of police custody for the first 14 days.—-

    This is absoulutely untrue and factually wrong.Who told you that 14 days of police cutody is a rule .Yo purposefully want to misguide the rreaders

  4. This is a worthy cause for liberal left to pursue. this will stop political motivated arrest to stop completely.
    Instead of fighting BJP and hindus, liberal left seem should focus on strengthening legal suport for minorities and poor and due process of law

  5. (i) The author Leah Verghese claims that “The magistrate in Alibag remanded him to judicial custody the next day, a departure from the normal practice of police custody for the first 14 days”. Is there a “normal practice” of police remand for 14 days? Is it not a fact that period of police remand depends on the gravity of offence? From what we read in the media, it is seen that rarely are the accused remanded in police custody for 14 days.

    (ii) The author claims that there is disproportionate representation of “marginalised communities” in the undertrial prisoner population. Who exactly are these “marginalised communities” and what is the relevance of this sweeping statement?

    (iii) The author claims that “half the undertrial prisoner population is Muslim, Dalit & Adivasi whereas these communities form 39.30% of Indian population”. She seems to be suggesting that Muslims, Dalits & Adivasis are being indiscriminately arrested and kept in jails as part of some unstated quota for jail population. From which jail she has got the figures? There are 100s of jails in India, has she visited them all? Why the special interest to know how many are Muslims, Dalits & Adivasis? (The terms dalits & adivasis have no constitutional sanctity).

    This is the level of a researcher graduate from Columbia University.

  6. Mr Varghese, you seem to forget the fact that this is India. Here “show me the person, I will show you the Rule” prevails.

  7. Agree entirely. While it is true that Arnab should not have been denied bail, because of the fact that 3.3 lakh under-trials are rotting in jails as they are unable to hire legal representation or arrange for security for securing bail, the reverse is also true. Bail should be the rule and jail an exception.The undertrial detention is a blot on our legal system.

    • Growing up will.make these guys bigger urban naxal talking more gibberish.

      When the magistrate noted that Arnab has been arrested illegally, why was he sent to remand at all? I thought bail is for those arrested legally?

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