US is currently engulfed in riots. The riots perhaps have widened the racial divide besides bringing around the dark facets of the racial inequality in the country. The allegations of police excesses on the black and other minorities like Latinos are not unusual and often carry significant merit. It is a different matter that leftist terror groups like Antifa are using the same to fire at Trump using the shoulders and hips of the blacks. To those in Antifa and like, the welfare of blacks is of least concern but what is of import to them is creating chaos making it difficult for President Trump to function.
In India, as the Chinese flu continues to spread, the instances of cases reported from prisons has sent the policy makers into releasing a number of prisoners. When the pandemic began, the Supreme Court had asked the states to release prisoners held on minor charges. The process is well underway. While ideally would have been to isolate the prisons for visits etc. yet the number of outsiders that contact the prison through supplies etc. carries a great risk of infection spreading inwards where social distancing is next to impossible. This has also brought to the fore the problems of the overcrowding of the prisons in India.
Prison statistics in many democracies show around 60-70% of the prisoners being undertrials. The major issue that prevents them from being released while under trial is either they remain unaware of their rights or cannot afford to post the bail. In the US , posting a bond, as it called there is relatively easy. In many case, the arresting officer or the jail have right to release them on payment of bail. In some cases the court does the same. There are bond posting companies which engage in the business of posting bails for a certain fees upfront. Therefore to someone who has the means to afford, the bail is relatively easier except for very few offences. Bail, in fact, is nothing new and has been evolved over centuries in Anglo Saxon law.
In India, the bail too can be easy to obtain in most cases. There are few high profile cases wherein the bail is delayed or granted at the Supreme Court but that is perhaps due to the risk aversion at lower courts. To many who are unaware of their legal rights or cannot hire a lawyer to defend themselves, they have to depend on the government appointed lawyer whose best interests might not necessarily be securing bail for the accused. Though the accused is presumed innocent till proved guilty, it is only in theory. In practice, it is often the opposite. It is not unusual to find magistrates or judges wanting to keep the accused in prison for some period of time before granting bail. Judicial corruption at lower levels is not unusual and been subject of debate for quite a number of years now. There are Public Interest Litigations (PIL) in Supreme Court on release of undertrial prisoners. There have been orders by the SC time and again, but the situation remains same.
Yet as we analyse the socio-economic dynamics of prison population, it is imperative to question the likes of Antifa and their supporters in US as also their PIL cousins in India on their role in the sabotaging of the criminal justice process. Their stated preference notwithstanding, the rights of those whom they claim to represent or advocate for are of least concern for them. A simple economics experiment will suffice to demonstrate the same.
In the US, the procedure is easier, while in India, the procedure is a bit cumbersome but nevertheless possible to get a bail relatively easier at least in theory. In the US there are bond posting firms. There is nothing that prevents the Antifa and likes to create bond posting teams or organizations or trusts etc. whose role would be to defend the rights of the accused at the time of arrest. They can offer their service to those whom they deem underprivileged at different counties and localities. They could function in parallel to the bond and bail companies that operate. In fact, given the way law operates in US, this would be a very good way to operate. Yet such instances have been very few. The fact that prison populations comprise fifty percent Blacks and Latinos as against their share in national population being around 30% itself indicates the letdown by these organizations. They are more interested in public rhetoric, violence but not in actual practices that alleviate the miseries.
Ditto for their Indian cousins. They are full of PILs on all and sundry. Yet they fall far short of actual help. There is very little they do to organize bail for the underprivileged. There is very little they do organize legal defences. There is some evidence of such kind of practices in the Muslim community though it is sporadic and not widespread or organized. If the left really cared for the overcrowded prisons, reducing prison population, speedy trials etc. they would have worked their way in the legal process to hasten the trials, organize defences, organize appeals, organize bails before all these. Yet their revealed preference as economists would term it is at odds with their stated preference. Given a genuine concern for the welfare of the downtrodden as they claim to advocate for, these practices would have been in place for many years already. Yet to them, this is hardly of concern. What matters to them is the perpetuation of the agony of the poor and unaware so that these can continue to fire on their shoulders for their profit maximization. The business of these left liberal chatterati is not about welfare but their own gains and they have built up their business model. Thus the business model is continuation of the poor in prison while awaiting trial while they make hay off the miseries of someone else.
In economics, there is concept of stated preference and revealed preference. Economic agents state their preferences perhaps with great clarity. Yet as one seeks to understand the behaviour of the agents in different circumstances, the stated preference hardly matters. The obvious reason is their actual actions might be very different, diametrically opposite to what they have stated. As Saumelson said, choice reveals preference. Their revealed preference is the choice they have exercised. Thus in the context being discussed, the choices they are exercising are not in alignment with their stated objectives. As somebody put it, if there was no prisoner population the very existence of this gang would be imperilled. What would they do for a living the day after. The best payoff for them lies in the current state of things. Preference for the status quo with an increased rhetoric is their revealed preference irrespective of what they state. Their assertions are mere rhetoric.
As one observes here, the gap between the stated preferences and the revealed preferences of the so called advocates of justice reform is a key hindrance in the judicial reforms. It is undeniable that the country needs judicial reforms to ensure smoother and swifter disposal of justice, yet within the current circumstances and environment, it is possible to do far more. The operational features critical to the functioning of the system is to smoothened. The current laws do give ample scope for the same. Yet this is exactly not been suggested or sought to be rigorously followed. This is what these left liberal group doesn’t press for nor is interested in pressing for. Until this happens, the intended objectives will remain a mirage.
Thoughts on Theory and Practice 