An Economic Model for a More Efficient Criminal Justice System

Excess of anything hides a lack of something. Here’s the excess: 77.13% of prisoners are
awaiting trial in India1. We are vexed, inadequately paced, hence an inefficient system, and
this excess is leading to another excess: violation of the right to life and personal liberty. The
aim of this essay is simple – The excess is recognized; I intend to identify specifically a lack
in the system and propose a system to level this balance. I do not claim novelty in the
solution given, but rather call for a replication of a unique economic model working in the
United States of America that has met with a considerable degree of success.

In lieu of dissecting the excess further, it is imperative to ask – why are 77.13% of prisoners
in jail without their guilt being proven? Is there a lack of a mechanism that could help them
get out? Most certainly, no. With the provision of bail2, it is most likely incorrect to conclude
that there is no mechanism for undertrials. But if there is a mechanism, why is it not
working? Is the lack actually a lack of judicial inclination for granting bail? Quite possibly.
However, with principles like ‘bail is the rule and jail is the exception’3 it is still
unsatisfactory to pass the blame on the intent of the legal system. There is a possibility of a
lack of implementation of the mechanism. In India, getting bail is a fairly objective process –
depending on the type of offense, there is a different process. To get bail in a bailable offense,
the suspect has to submit Form- 45 given in the Second Schedule of the Code of Criminal
Procedure Code to the court in which his case is being heard. The police cannot grant bail
without the court’s approval. In case, the suspect is accused of committing a non-bailable
offense, he has to submit the same form before the Court in which his case is being heard, but
granting of bail is at the discretion of the court only. The bail amount the accused has to
deposit is also at the discretion and decision of the court. However, in criminal cases with
lower gravity, a standard amount is set by convention and practice which needs to be
deposited for awarding the bail.4

Such a process is fairly direct however the impact of this provision is hit differently. Most of
the undertrials are poor and belong to backward classes of society5. This may lead to the
inability in depositing the bail amount, further leading to a delayed trial.

Taking inspiration from an American NGO named ‘The Bail Project’, the public amongst
themselves could work together to solve this issue. If lack of resources is the problem, an
economic model for paying the bail could be the solution by creating novel NGOs focusing
on such a problem. Let’s imagine - the bail is set, however, unfortunately, the person is
unable to pay the bail amount. Instead of delaying his trial, the organization intervenes, pays
1
National Crimes Records Bureau, Prison Statistics in India 2021, ch 3 s
2
Criminal Procedure Code 1973, chapter XXXIII section 436
3
State Of Rajasthan, Jaipur vs Balchand 1977 AIR 2447, 1978 SCR (1) 535
4
Criminal Procedure Code 1973, chapter XXXIII section 436
5
National Crimes Records Bureau, Prison Statistics in India 2021, ch 3
the amount and the individual is allowed to be out of incarceration before he is convicted.
The mechanism doesn’t end here. After the trial, the bail money is returned by the court so
the organization gets the money back and uses the corpus to help another individual. The
efficiency and economic sustainability of this procedure are the reasons why they would
work. More importantly, such a procedure has. The Bail Project has helped 24,384 people to
secure bail6. The proliferation of organizations like these in India would help to mitigate the
undertrial issue, overcrowding of prisons, and crucially, help the accused to exercise his
rights.

A potential critique of this model could be the fact that the trials are so slow and if the
organization keeps intervening but does not get the money back for economic sustenance due
to long-drawn trials, it would possibly collapse because of a lack of funds. But what if the
pace of judicial decisions is increased if the accused actually does get bail on time? The
complexity of the problem lies in its two-way nature.

But at a time when so many utterly languish without any fault of their own, should we wait
for systems that are perfect or instead create systems with a purpose? Our answer to this
question determines the safety of many but it is of great importance to remind us the gravity
of the issue demands urgency, urgency demands action, and the action depends on us.

6
The bail project, 'The Bail Project' (Https://bailprojectorg/, 2021) <https://bailproject.org/> accessed
31 October 2022