Undertrial Prisoners of India: The Justice System in Crisis:

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Written by: Eshti Kapoor[1]


The Supreme Court (SC) has issued a series of orders to state authorities in Bhim Singh vs. Union of India[2], allowing undertrial inmates who have spent half of their likely maximum prison term to be released. While the directive is primarily a reiteration of previous judicial actions, it represents a significant step forward (SC Legal Aid Committee v. Union of India[3]; Rama Murthy v. State of Karnataka[4]).

Around two-thirds of those imprisoned in Indian jails are awaiting trial. These defendants are assumed innocent, yet the bulk of them stay detained owing to their inability to pay their bail, a condition that underlines the system’s fundamental economic prejudice.

The right to a quick trial is a right to a prisoner’s life and personal liberty protected[5], which assures a just, fair, and reasonable process. By assigning a liberal and comprehensive meaning to life and personal liberty, the Supreme Court of India has been highly watchful against encroachments on the human rights of inmates. Undertrial detainees are people who are awaiting trial in any court, are unable to provide surety, and have no access to legal representation, and are held in prison for years at a time, in violation of their human rights.

Undertrial Prisoners: Issues and Concerns[6]

People who are awaiting trial in any court and are being held in judicial custody in prison while awaiting trial are known as “undertrial prisoners”. Article 21 of the Indian Constitution establishes the right to life and personal liberty as the cornerstone of Indian human rights, prohibiting any inhumane, cruel, or humiliating treatment of any person, including prisoners.

A person is considered to be in detention when he is in custody and his personal liberty is taken away unless he is convicted of a crime. This could be due to the fact that the person is awaiting formal charges to be brought before a magistrate, or because they are awaiting a trial and are unable to gain bail. The goal of holding undertrials in custody is to ensure a fair trial by preventing them from influencing or inducing witnesses.

While the Indian Code of Criminal Procedure, 1973 gives judges the option to postpone or adjourn proceedings, it emphasises the importance of a speedy trial. According to Section 309 of the Code, “any inquiry or trial shall be conducted as quickly as possible,” and “when the examination of witnesses has commenced, it shall be continued from day to day until all the witnesses in attendance have been examined.”

There are numerous other factors that contribute to trial delays. The first main cause of trial delays is a judge shortage, which has resulted in a large backlog of outstanding cases. To relieve the judges’ burden, the number of judges should be significantly expanded.

Another cause of delay is the failure to serve a summons on witnesses, and even when the summons is served, witnesses fail to appear. The police, as the investigating agency, is in charge of serving summonses on witnesses. Witnesses do not appear in court even after being served with a summons because there is no hard and fast rule requiring them to do so. Even the absence of a police witness can cause the trial to be delayed. In India, the police are responsible for maintaining peace and order as well as acting as an investigative agency. It becomes difficult for the police officers in charge of maintaining law and order to investigate crimes and pursue them in court.

The fundamental human rights issue with undertrials is the time it takes for cases to be tried. The right to a quick trial is a right to a prisoner’s life and personal liberty protected by Article 21 of the Constitution, which assures a just, fair, and reasonable process. However, eighty current inmates are awaiting trial, and some of them are not released even after being granted bail because they are unable to provide surety bonds due to a lack of funds or verification of addresses because some inmates do not have homes. One of the primary goals of the criminal justice system is for offences to be tried as quickly as possible.

An Undertrial may be warranted in prison on the following grounds[7]

  • If the person arrested is likely to interfere with witnesses or
  • Obstruct the process of justice;
  • If the person arrested is likely to conduct the same or another crime; or
  • If he is likely to fail to appear for trial

The criminal justice system in our country is built on two principles: first, that anybody detained is presumed innocent until proven guilty, and second, that it is the state’s and the court’s responsibility to ensure that the people and the victims are treated fairly. To attain these goals, the study and trial procedures should be completed as soon as possible. However, they are not being met, and undertrials continue to languish in prison for years.

Because the amount set by the court is so high, even without sureties, it is difficult for the poor to post bail. As a result, in many circumstances, the impoverished are unable to satisfy the police or the court as to their solvency for the amount of the bail, and when the bail is with sureties, as it is in most cases, finding someone sufficiently solvent to stand as surety becomes impossible.

As a result of this, they must remain in custody until their case is heard in court, which could result in serious repercussions such as:

  • Despite the fact that they are presumed innocent, they are subjected to the emotional and physical hardships of prison life.
  • Family life is disrupted by pre-trial confinement, which is usually financially ruinous for the family.
  • They are unable to contribute to the preparation of their defence as a result of this.

Problems faced by Undertrials in India[8]

In Indian jails, undertrials make up the majority of the prison administration, resulting in overpopulation. Overcrowding in prisons must be reduced in order to lower the number of prisoners awaiting trial. This will not be possible unless the court and the police work together. Overcrowding has caused a slew of issues for pre-trial detainees, including:

  • As there is no distinct prison for undertrials, there is a risk that first-time and circumstantial offenders will become criminals due to the presence of hardened criminals and the lack of scientific categorization methods to distinguish them from others.
  • For first-time offenders who are subjected to gang violence and police mistreatment, prisons can be a hazardous environment.
  • Most jails struggle to keep inmates safe and healthy due to overcrowding and a lack of enough room to house them. The majority of the inmates, including the undertrials, come from low-income and disadvantaged communities where sickness, starvation, and a lack of medical care are frequent.
  • Mentally ill inmates, who make up a significant portion of the jail population, are usually overlooked. Both the outer world and the inside world disregard them. However, due to the nature of their sickness and the existing social views in the country, they are the most helpless victims of human rights violations.
  • The family of the under-trial prisoner is frequently thrown into destitution and social stigmatisation as a result of the protracted absence of the main breadwinner. In many circumstances, this can lead to children being delinquent and being used by others.

Human Rights of Undertrial Prisoners[9]

These detainees’ human rights have been violated. These are basic and inalienable rights that every human being has by virtue of being born. These are believed to be natural and basic rights of all human beings, regardless of sex, caste, race, language, or other factors. The human rights of detainees awaiting trial have been thoroughly examined.

Every person arrested in this manner has the right to appear before a magistrate within 24 hours of his arrest. This right is derived from Article 22(2) of the Indian Constitution and Section 57 of the Criminal Procedure Code. The purpose of such a safeguard is to protect the individual in custody from the possibility of ill-treatment and torture by the police while in custody. This right is crucial since it assures that authorities cannot detain a person at will.

In the case of Sharifbai vs. Abdul Razak[10], the Supreme Court declared that if the accused individual is not brought before the magistrate within the time limit, the imprisonment is illegal. Also, a police officer cannot retain an accused individual in custody without first telling him of the reason for the arrest. In addition, he will be notified of his legal entitlement to bail[11]. This privilege allows the arrested person to petition for bail and prepare any other defence in a timely manner.

The Supreme Court held in State of Rajasthan vs. Balchand alias Baliay[12] that it is not essential to keep an accused person in court if the accused’s appearance can be guaranteed through other methods. The court also declared that bail, rather than prison, should be the standard.

Role of the Judiciary and the Legislature[13]

The judiciary has tried to ease the welfare of the undertrials on numerous occasions by enacting various guidelines in historic decisions. The Supreme Court addressed the treatment of women detainees in police cells in Sheela Barse vs. the State of Maharashtra[14]. It issued a number of directives aimed at improving the conditions of female inmates in prisons and ensuring proper protection for arrested people, particularly women, in police detention centres.

In the first Sunil Batra vs. Delhi Administration[15] case, the court stated that subjecting a prisoner to bar fetters for an extended period of time without proper respect for his safety and the security of the prison would be a violation of his basic human dignity, which is prohibited under the constitution. The court also stated that solitary confinement has a demeaning and dehumanising effect on the prisoners, which is a violation of their constitutional rights under Article 21.

By changing the Criminal Procedure Code in 2005, parliament aimed to address the issue of long-term imprisonment of pre-trial detainees. An undertrial prisoner can be freed on a personal bond if he has spent half of the maximum term for the offence for which he is charged, according to Section 436A of the law. This section, however, will not apply if the crime is punishable by death.


Undertrial detainees are those who have been charged with a crime but have yet to appear in court. They can’t be termed criminals because their guilt hasn’t been established. The vast majority of undertrial detainees are poor and unable to post bail in order to be released. They are not informed about their legal rights, such as the right to free legal assistance, the right to choose their own lawyer, and the right to bail.

The essence of the criminal justice system is speedy trial, and there is little doubt that delays in trial represent a denial of justice in and of themselves. A person held as an undertrial cannot be deprived of his or her right to life and personal liberty, as protected by article 21, and is entitled to equality and equal treatment under the law, as guaranteed by article 14.

Keeping undertrial inmates in jail for long periods of time, often even longer than the real punishment for the crime they are accused of committing, is a grave violation of human rights.

About the Author

Undertrial Prisoners

Eshti Kapoor

Student at Vivekananda School of Law and Legal Studies, VIPS.

She has participated in various academic events at VSLLS including successfully completing the Legal Drafting and Office Management Course at Vivekananda Institute of Professional Studies. She has a keen interest in writing and has written many articles for various legal blogs. She is an author of “Equal Pay for Equal Work” Research Paper published at Journal of Emerging Technologies and Innovative Research (JETIR)

[1] B.B.A LL.B (Hons.) student of 4th year at Vivekananda Institute of Professional Studies, VSLLS, VIPS, Guru Gobind Singh Indraprastha University.

[2] Writ Petition(s) (Criminal) No. 310 of 2005

[3] 1994 SCC (6) 731

[4] Criminal Appeal No. 443 of 2010

[5] According to Article 21 of The Indian Constitution of 1950

[6] Undertrial Prisoners in India: Issues and Concerns, Dr. Anil Kumar Singh ( https://www.worldwidejournals.com/international-journal-of-scientific-research-(IJSR)/recent_issues_pdf/2016/May/May_2016_1492763816__110.pdf ) (Last Visited: 20.08.21)

[7] The Human Rights of Under Trail Prisoners, Khan Akib, ( https://www.legalserviceindia.com/legal/article-4537-the-human-right-of-under-trail-prisoners.html ) (Last Visited: 21.08.21)

[8] The Human Rights of Under Trail Prisoners, Khan Akib, ( https://www.legalserviceindia.com/legal/article-4537-the-human-right-of-under-trail-prisoners.html ) (Last Visited: 21.08.21)

[9] The Human Rights of Under Trail Prisoners, Khan Akib, ( https://www.legalserviceindia.com/legal/article-4537-the-human-right-of-under-trail-prisoners.html ) (Last Visited: 21.08.21)

[10] AIR 1961 Bom 42

[11] Article 22(1) of The Constitution of India 1950 and Section 50(1) of the Criminal Procedure Code 1973

[12] 1997 AIR 2447, See Section 50(2) of the Criminal Procedure Code 1973

[13] The Human Right of Under Trail Prisoners, Khan Akib, ( https://www.legalserviceindia.com/legal/article-4537-the-human-right-of-under-trail-prisoners.html ) (Last Visited: 21.08.21)

[14] AIR 1980 SC 1535

[15] (1978) 4 SCC 409

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