Law and Undertrial Prisoners

As civilization and society has improved, individuals and communities have assumed a very important role in the political and social spectrum. Debates about the State and its relation to people have become much more prominent along with a growing recognition of individual rights, liberty and principles of justice. With this increased focus, the rights of prisoners have come to the forefront of these discussions.

Prisons and correctional facilities are necessary components of any criminal justice system, however, the Indian criminal justice system does have certain glaring issues, including the large number of undertrial prisoners in India. Undertrial prisoners are those people who are in the custody of the state, while awaiting trial. The reasons for keeping these individuals confined can be varied however the most common reason is to ensure fairness of trial so that they cannot have any undue influence over the trial proceedings. However, according to reports of the National Crime Record Bureau, undertrial prisoners constitute almost 60% to 70% of the prison population (across many years) which points to an underlying issue regarding the rights of the prisoners and whether it is fair to keep them in prison for so long despite a lack of conviction.

This article attempts to explore why the number of undertrials are so high in Indian prisons and explores how far the rights of undertrial prisoners are being facilitated in India.

The Law and Undertrial Prisoners

According to the 78th Law Commission Report,[1] undertrial prisoners or pre-trial detainees refers to unconvicted prisoners, someone who has been detained in prison during the process of investigation, inquiry or before the trial for an offence they are accused to have committed. 69.1 percent of India’s prisoners languishing in jails across the country are undertrials, which are among the highest observed numbers in the world.[2] Of these undertrials, as many as 2000 people have been in prison for over 5 years. From the statistics along we can see that the issue of undertrial prisoners is one that requires an immediate and drastic action.

Section 436 A of the Criminal Procedure Code states that if an undertrial prisoner is detained for more than half of the maximum period of imprisonment attributed to the crime, then he/she should be released on the presentation of a personal bond.

 Indian authorities and the judiciary themselves have also seen the problem of undertrial prisoners as being against the concept of liberty, as such prisoners without a conviction are still deemed innocent in the eyes of the law. In the landmark case of Moti Ram and Ors. V. State of Madhya Pradesh the court stated the following;

The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”[3]

The law on numerous other occasions has asked for the improvement and better implementation of the existing systems such as the landmark judgement of Bhim Singh v. Union of India[4] which issued a series of directives to the state to ensure the release of undertrial prisoners. However things still have a very long way to go in terms of alleviating prison capacity and ensuring better rights.

The Ground Reality of Undertrial Prionsers

As per the report released by the National Crime Record Bureau, (NCRB) there are a total of 1350 prisons in India and 2019, the capacity of prisons increased by 1.90% but the number of prisoners increased by 2.69%, as compared to 2018.[5] This means there was increase in the occupancy rate of prisons from 117.6% to 118.5%, which is indicator that the prisons in India are very overcrowded. This issue has persisted over the years with occupancy rate remaining high consistently.

The high occupancy rate is due to the large number of undertrial prisoners found across the central jails of the country as they constitute nearly 70% of the prison population in 2019. According to the report there was a 2% increase in the number of undertrial prisoners from 2018 to 2019. The reports also show that undertrial prisoners are confined for many years with 74.08% of undertrials being confined for 1 year, 13% for 1-2 years, 6.7% for 2-3 years, 4.25% for 3-5 years and 1.52% of undertrials were confined for more than 5 years.

The demographic profile of such prisoners are also noteworthy, with many of them being between the ages of 18 and 30, spending the prime of their lives behind bars. Several cases also show the undertrials being the sole breadwinners for their families, leaving their family in a state of despair. Many female undertrial prisoners are even forced to live with their young children in jail as they have no other recourse. Being incarcerated for years also brings about psychological trauma along with the societal stigma of being labelled as a criminal. Life for undertrial prisoners is remarkably bleak.

Why are there so many Undertrial Prisoners?

Despite the efforts of the legislations and the judiciary the problem of undertrials languishing in jail has continued in our prison system, with their numbers increasing every year. There are several reasons for this, with one of the most pertinent ones being delay in conducting trials. For the years the number of undertrials who spent more than 1 year in prison continues to increase due to their trials being delayed. The right to speedy right is held to be a fundamental right for criminal defendants. In Hussainara Khatoon the Supreme Court observed that;

An alarmingly large number of men and women, including children are behind prison bars for years awaiting trial in courts of law. The offences with which some of them are charged are trivial, which, even if proved, would not warrant punishment for more than a few months, perhaps for a year or two, and yet these unfortunate forgotten specimens of humanity are in jail, deprived of their freedom, for periods ranging from three to ten years without even as much as their trial having commenced. It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial.”

Despite this acknowledgement many trials are denied or pushed back due to the large number of pending cases before the judiciary. The current pandemic has only worsened this due to restrictions and protocol the court has to face.

Another reason for this undertrials crowding prisons is the lack of easy bail. Uday Mohanlal Acharya v. State of. Maharashtra[6] held that undertrial prisoners had an inalienable right to be released on default, even for non-bailable offences, if a chargesheet isn’t filed by the police within 90 days of police custody. Despite such steps to alleviate the pressure on the prison system, many undertrials spent many years in prison. When accused of committing non-bailable offences, a person can only be released on bail by the court if it is satisfied that the person shall attend the court to stand trial, and will not tamper with evidence or influence witnesses or obstruct police investigation in any manner.[7] Many poor people end up in jail for long periods of time for bailable offences because they unable to furnish surety. It is a system that can target the underprivileged.

The indiscriminate arrest done of police officers also contribute to this issue, as the powers of arrest granted to them under the Code of Criminal Procedure are very wide. This allows them to arrest people even if they cooperate with the investigation. The courts have held that arrest is the exception and not the rule.[8] However like many developments that we have noted, this hasn’t done much to curb the problem.

Apart with the systematic issues, issues relating to undertrials are also connected to who they are. Through NCRB reports we’re able to observe the characteristics of the prisoners which show that a vast majority of them are poor, illiterate, belong to lower castes and are also religious minorities. It is pertinent that people who are minorities of the general population or disadvantaged people, are frequently over-represented as undertrial prisoners. This means that most of these prisoners are unaware of the law or are often too poor to afford sureties. They often lack legal representation and face very high levels of discrimination. Undertrials do have the right to consult a lawyer of their choice under Article 22 of the Constitution. Legal aid is also regarded as an essential element of just, fair and reasonable procedure under Article 21 however many undertrials do not even file bail applications due to ignorance or because they can’t find a lawyer. The lack of strong legal aid culture means that many undertrial prisoners face years behind bars without any knowledge about their situation or any recourse available to them.

This issue is a serious hindrance to a criminal justice system. Innocent until proven guilty is accepted as a cardinal principle of criminal law. Undertrial imprisonment directly violates this principle since undertrials are deprived of their liberty and thrown into jail before trial or conviction. They are innocent before the eyes of the law and yet they’re treated as prisoners, stripped of their rights and left to languish in overcrowded prisons. This is made worse since nearly a quarter of those undertrial prisoners who are not released are later acquitted. [9]

In the eyes of society, there is virtually no difference between a convicted prisoner or an undertrial forced to spend years in jail. Upon being released, the undertrials are affected mentally, including low self-esteem or other mental health issues. They may be unable to find a job or proper accommodation, which if the undertrial is the sole-breadwinner of the family, means destitution for his/her family. Furthermore as stated before many women undertrials are accompanied by their children since they are unable to care for them otherwise and even the courts have noted that a jail is not a conducive environment for a child to grow in.

The Way Forward for Undertrials

Through the analysis of the issues we can see that this is a complicated problem. Issues like these which permeate every aspect of our system cannot be dealt with easily. It requires a comprehensive plan and not simplistic one like the suggestion of fast-track courts. Since it’s a system wide problem, there is a need for an overhaul of the criminal justice system in India.

This includes revamping outdated laws like the Prisons Act which provide grieve penalties like solitary confinement, whipping etc. This is shown to be violative of the Constitution in the judgement of Sunil Batra v. Delhi Administration which also stated that;

“It has been well established that convicts are not by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess.”

There should be an emphasis on reducing the undertrial population by following the various statutory provisions and other judicial decisions regarding the rights of undertrial. Through this analysis, we’re able to find many judgements that acknowledge the situation of undertrials as a grave problem but we don’t see as much vigour in solving the problem. Therefore, prison reforms and other recommendations of committees such as ones headed by Justice Mulla which advised Undertrial Review Committees (URC) to be streamlined should be taken seriously. An important step in this regard would be for URCs to discourage policemen over making hasty arrests.

Another human suggestion that could be done in the short term is undertrials should be housed in open jails where they can move around freely. They should also be able earn a living while there. These steps can ensure that incarceration isn’t so punitive, as punishment should be reserved for those who’ve committed a crime. As is clear from this discussion, a person who hasn’t been able to stand trial should be treated or considered equal to a convicted prisoner.

The country is also in desperate need of a legal aid system that is responsive and active, allowing poor and underprivileged undertrials to have vital access to legal counsel. In this regard, the Law Commission’s proposal for new lawyers to do a two-year compulsory stint with the legal aid system is still hanging in fire and needs to be enforced immediately. [10] The state also needs to increase the compensation being given to Public Defenders to encourage a strong legal system that caters to those who may not be able afford counsel. Undertrials who are poor or disadvantaged should be punished for such qualities and should be provided with protection against such pitfalls.


Undertrials prisoners form the majority of prisoners in India and they continue to increase every year. Their problems are well known and well documented by the State. There have been numerous judgements that acknowledge the difficulties and unfairness of undertrials being indefinitely confined in prison. Various amendments have been made to statutory provisions that help curb indiscriminate arrest and allow for release on personal bonds. However, the problem still continues despite reforms stated.

This is due to the mismatch between legal position and actual implementation. Although the problem has been correctly identified, the issue persists due to poor implementation of laws, reforms and judicial decisions. Therefore in order to see positive and drastic change, we should be focused on proper implementation rather than the introduction of new ideas.

[1] 78th Report of the Law Commission of India (1979)

[2] National Crime Records Bureau (NCRB) Report, 2020,

[3] Moti Ram and Ors. V. State of Madhya Pradesh AIR 1978 SC 1594

[4] 2014 (4) RCR (CRIMINAL) 234

[5] Supra note 2

[6] (2001) 5 SCC 453

[7] State of Rajasthan v. Balchand, (1977) 4 SCC 308

[8] Joginder Kumar vs State Of Uttar Pradesh 1994 AIR 1349

[9] Chandra, Aparna and Medarametla, Keerthana, Bail and Incarceration: The State of Undertrial Prisoners in India (November 24, 2017)

[10] Sudhir Krishnaswamy et al, 2014

Author: Rithika Rarichan

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