Social Injustice and Social Inequality in Punishment

In one line

Even a system with no biased person in it will punish the poor more than the rich, because almost every stage of a criminal process costs money, time and standing, and those are exactly what the poor do not have.

In the wording a student can write in an exam: social inequality affects punishment not only through the prejudices of individuals but structurally, because criminal procedure at every stage distributes advantages according to wealth, literacy, social standing and access to representation, so that formally equal rules produce systematically unequal outcomes, and because the conduct that is defined and enforced as crime is itself shaped by who has the power to define it.

The structural argument, in five steps

1. Formal equality is not substantive equality

The law is the same for everybody, and that is the problem rather than the answer. Anatole France's observation is the classic statement of the point: the law in its majestic equality forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread. A rule that applies identically to unequal people produces unequal results.

2. Every stage of a criminal process has a price

Being stopped. Policing is concentrated where it is visible and cheap, which is public space, and people who live and work in public space are poor.

Bail. Release before trial commonly depends on a surety, on proof of a permanent address and on documented employment. Each of those is a proxy for property and settled work rather than for the risk of absconding. A person who cannot furnish them remains in custody though the law grants them bail.

Representation. Article 39A of the Constitution directs the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity and, in particular, to provide free legal aid so that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The gap between that direction and the quality actually available is where much of this topic lives.

Time. A trial requires attendance on many dates. A salaried person takes leave; a daily wage earner loses the day's wage each time, and after several dates may prefer to plead guilty to a minor offence rather than continue.

Fines. A fixed fine is a trivial sum for one person and a month's food for another, which is why day-fine systems, calibrated to income, exist elsewhere.

Appeal. An appeal costs money and requires somebody to conduct it.

3. Custody before conviction does the work of punishment

The most important structural fact in the Indian criminal process, and it needs no bias at all. A person who cannot obtain bail undergoes confinement, loss of employment, loss of housing and damage to reputation, all before any finding of guilt, and often for longer than the sentence the offence would carry. Every justification in chapter 460 is unavailable, because there is no conviction, no finding, and often in the end no offence.