Undertrials in India

“Justice delayed is justice denied.”- English adage

Context: The Supreme Court has recently set up a panel headed by a retired judge of the court to usher in drastic prison reforms and decongest overcrowded jails.It will examine the functioning of undertrial review committees, availability of legal aid and advice.

Who are Undertrials?

Undertrial is a person who is in judicial custody or remand during investigation and denotes an unconvicted prisoner.

Status of Undertrials in India:

  • More than 65% of the prison population in India are under trials. Of these undertrials, more than 2,000 have been in jail for over five years
  • The share of the prison population awaiting trial or sentencing in India is extremely high by international standards; for example, it is 11% in the UK, 20% in the US and 29% in France.
  • According to NCRB, out of the total number of undertrials in India, 55% are Dalits, Muslims or Adivasis. This is disproportional as these communities make up only 39% of Indian population
  • Further, 42% of the undertrials have not completed their secondary education

Reasons for increasing number of Undertrials:

  1. Population-Judge ratio: Population-judge ratio is extremely low in India, which is only 12 judge per million of population (in USA its 1100 per million and in China 190 per million). this leads to huge pendency of cases with undertrials being incarcerated in jails without even a fair chance of trial.
  2. Delayed investigation: Investigation and trial process is often delayed by police and prosecution functionaries. A major reason for this delay is low ‘Police- Population’ ratio. Moreover, alleged corruption in police forces often lead to delays and unnecessary arrests.
  3. Inadequate Prosecution system: The Delhi High Court, in a March 2014 order observed, “One of the predominant causes for delay in disposal of criminal case is due to shortage of public prosecutors”.
  4. Poverty and illiteracy: A large number of Undertrials are poor, illiterate, belonging to the marginalized communities. Given this, most undertrials require public defender and legal aid to secure bail. However, there is a dire crunch of legal representatives for the under trials.
  5. Problems with the Bail system:  The Law Commission in its 268th report has highlighted the fact that the rich and the affluent get bail with ease. However, poverty becomes the reason for incarceration of many prisoners, as they are unable to afford bail bonds or provide sureties.


  • The Code of Criminal Procedure, 1973 does not define the term ‘bail’ although offences are classified as ‘bailable’ and ‘non-bailable’.
  • Bailable offences are less serious offences and any person accused of committing these is entitled to be released on bail as soon as he/she is willing to furnish the bail amount.
  • In case of non-bailable offence, 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 39 police investigation in any manner


The Constitution of India, the Universal Declaration of Human Rights and the Standard, Minimum Rules for Treatment of Prisoners clearly specify the standards of treatment with prisoners on trial. However, undertrials are subjected to many disadvantages inside and outside prison such as:

  1. Economy: A demographic profile of Undertrials indicates that most of them are in the younger age group. Thus, the most productive years are wasted in a prison which is not only a sentimental loss of youth for the individuals, but also a loss for their families and Indian economy.
  2. Family: Often the undertrial happens to be the only earning member. Thus their family is left in a state of destitution during their imprisonment. Apart from the regular expenses, the family finds it difficult to afford for legal expenses to ascertain a fair trial for the individual.
  3. Psychological: Those who spent years in jails carry the psychological burden of imprisonment often leading to depression and mental illness.
  4. Social: Undertrials even after release face problem in integrating within the society and face social stigma- the stigma of being called a criminal for the rest of their lives.
  5. Human and constitutional rights: Granting justice at a higher cost indirectly leads to the denial of justice. This leads to a clear violation of the Supreme Court judgement which held, legal aid to a poor is a constitutional mandate not only by virtue of Article 39A but also Articles 14, 19, 21 which cannot be denied by the government.
  6. Prison resources: The huge number of Undertrials not only leads to overcrowding in prisons but strain the already insufficient prison infrastructure and human resources.
  7. Specific problems faced by under-trial prisoners: The Right to Speedy Trial – as recognised by the Supreme Court in Hussainara Khatoon vs. Home Secretary, Bihar is violated due to protracted delays. This delay is due to all kinds of reasons such as –

a) Systemic delays.

b) Grossly inadequate number of judges and prosecutors.

c) Absence or belated service of summons on witnesses.

d) Presiding judges proceeding on leave.

e) Remands being extended mechanically due to lack of time and patience with the presiding judge.

f) Inadequacy of police personnel and vehicles which prevents the production of all prisoners on their due dates.

g) Right to bail is denied even in genuine cases. Even in cases where the prisoner was charged with bailable offence, they are found to rot in prisons due to exorbitantly high bail amount. The spirit of the Supreme Court in Moti Ram & others vs. State of Madhya Pradesh is violated constantly. The Law Commission analysed this in detail in its 78th report on congestion on undertrials.

h) The escorting police personnel sometimes produce only the remand papers in the courts instead of actually producing the prisoner in front of the magistrate. This violates the Section 167(2)(b) of the Criminal Procedure Code, 1973 which says that – ‘No Magistrate shall authorize detention in any custody under this section unless the accused is produced before him.’

Supreme Court Directives:

  1. Eight-point guidelines were issued by SC in a landmark judgement on inhuman conditions of prisons in 2013. The guidelines on the issue of undertrials are as follows:

1. The Under Trial Review Committee in every district should meet every quarter.

2. The Under Trial Review Committee should specifically look into aspects pertaining to effective implementation of Section 436 of the CrPC (prisoners to be released on bail except for non-bailable offences)  and Section 436A of the CrPC so that undertrial prisoners are released at the earliest.

3. State Legal Service Authority of every state should ensure that an adequate number of competent lawyers are provided to assist undertrial prisoners and convicts, particularly the poor and indigent

4. District Legal Services Committee should also look into the issue of the release of undertrial prisoners in compoundable offences.

  1. Bhim Singh v. Union of India, 2014:

SC had set a deadline of 2 months and directed district judges and prison officials to oversee the process of release of undertrial prisoners who have served half of their probable maximum prison term.

Law Commission recommendations:

The Law Commission in its 268th Report has made the following recommendations:

  1. When a person is arrested without a warrant, the arresting officer should inform the person about the available legal remedies including applying for bail.
  2. Bail applications should be decided by subordinate courts within a week.
  3. If the investigating officer finds that the under-trial is not in a position to pay surety then that person should be allowed bail without payment of surety.
  4. A portion of the funds transferred to the Panchayat for developmental work should be set aside to meet the bail amount for under trials belonging to the particular panchayat / block.
  5.  Release of Undertrials:
  • The bail provisions under Section 436A of the CrPC should be amended to ensure early release of under-trials.
  • Those who had completed one-third of the maximum sentence for offences up to seven years should be released.
  • Those who were awaiting trial for offences punishable with imprisonment of more than seven years should be let out on bail if they had completed half their sentence.

Government initiatives:

  1. Establishing fast-track courts to speed up the resolution of cases involving undertrial prisoners.
  2. Mission Mode Programme for Delivery of Justice  & Legal Reforms–Undertrial Programme: It aimed to resolve 2/3rd of all undertrial cases and ease congestion in jails by 2010. It worked with state governments to identify the undertrial prisoners who were entitled to be released under the law and link them with Legal Service Authority to ensure their release
  3. Introducing the concept of plea bargaining through Section 265 of CrPC:
  • It states that the plea bargaining shall be available to the accused who is charged of any offence other than offences punishable with death or imprisonment or for life or of an imprisonment for a term exceeding to seven years.
  • Plea bargaining has been encouraged by National Legal Services Authority (NALSA) within CrPC parameters

Note: Plea bargaining is a pre-trial negotiation between the accused and the prosecution where the accused agrees to plead guilty in exchange for certain concessions by the prosecution.

4. Insertion of Section 436A of CrPc– It states that if an accused is detained for more than half the maximum period of imprisonment associated with the crime, he/she has the right to be released on the presentation of a personal bond.

5. Free legal services are provided to all undertrial prisoners by NALSA’s legal service clinics.

Constitutional Safeguards available for Undertrials/ Prisoners
ArticleWhat it states
RIGHT TO EQUALITY: ARTICLE 14It states that “the state shall not deny to any person equality before law or the equal protection of laws within the territory of India”
RIGHT TO FREEDOM: ARTICLE 19 and LIMITATIONS “freedom of movement”, “freedom to reside and to settle” and “freedom of profession, occupation,
trade or business" cannot be enjoyed by the prisoners

"freedom of speech and expression", "freedom to
become member of an association" etc. can be enjoyed by prisoner
PROTECTION AGAINST CONVICTION OF OFFENCES: ARTICLE 20(1)It restricts the power of legislature to implement any criminal law retrospectively, it means if an act is not an offence at the date of its commission it cannot be an offence at the date subsequent to its commission.
PROTECTION AGAINST DOUBLE JEOPARDY: ARTICLE 20(2)It states that “no one shall be prosecuted and punished for the same offence more than
PROHIBITION AGAINST SELF INCRIMINATION: ARTICLE 20(3)It provides that “No person accused of any offence shall be compelled to be a witness against himself.”
RIGHT TO LIFE AND PERSONAL LIBERTY: ARTICLE 21It states that “no one shall be deprived of his life or personal liberty except the procedure established by the law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or fanciful”.
RIGHTS OF PERSON UNDER ARREST AND DETENTION: ARTICLE 22(1)It directs that no person who is arrested shall be denied the right to consult and to be defended by the legal practitioner of his choice as well.
The right is also available in the Code of the Criminal procedure under section 304.
RIGHT TO BE PRODUCED BEFORE MAGISTRATE: ARTICLE 22(2)Every arrested person has right to be produced before the
nearest magistrate within 24 hours of arrest
No such person shall be detained beyond 24 hours without the authority of a magistrate
RIGHT TO CONSTITUTIONAL REMEDIES: ARTICLE 32When the personal liberty of a person is deprived by the officials illegally, the remedy available to them is by way of Writs under Article 226 of the constitution before the high courts, and under Article 32 of the constitution before the Supreme Court.
ARTICLE 39-A : EQUAL JUSTICE AND FREE LEGAL AIDIt states that “State shall secure that the operation of legal system promotes justice and ensure that the opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities”

Solutions for Undertrials

  1. Undertrial prisoners should be lodged in separate institutions away from convicted prisoners. There should be proper and scientific classification even among undertrial prisoners to ensure that contamination of first time and petty offenders into full fledged and hardcore criminals does not happen.
  2. Under no circumstance should they be put under the charge of convicted prisoners.
  3. The under trials who have been charged with petty crimes can further be put in reformative homes instead and asked to do community service till the time they are released on bail.
  4. Elementary education facilities must be granted to those under trials who are uneducated and illiterate.
  5. Provisions of Section 167 of the CrPC with regard to the time limit for police investigation in case of accused undertrial prisoners, should be strictly followed by both the police and courts.
  6. Automatic extension of remands has to stop which are also given merely for the sake of the convenience of the authorities. Mere convenience of the authorities cannot supersede the Constitutional guarantees under Article 21.
  7. All undertrial prisoners should be effectively produced before the presiding magistrates on the dates of hearing.
  8. The possibility of producing prisoners at various stages of investigation and trial, in shifts could be explored.
  9. Video conferencing between jails and courts should be encouraged and tried in all states beginning with the big Central jails and then expanding to District and Sub jails.
  10. Police functions should be separated into investigation and law and order duties and sufficient strength be provided to complete investigations on time and avoid delays.
  11. The criminal courts should exercise their available powers under Sections 309, 311 and 258 of the CrPC to effectuate the right to speedy trial.
  12. In appropriate cases jurisdiction of the High Court under Section 482 of the CrPC (preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice) and Articles 226 and 227 (defines powers of HC) of the Constitution of India can be invoked seeking appropriate relief or suitable directions to deal with and prevent delay in cases.
  13. Order of Dr. A.S. Anand – former Chief Justice of India on holding Special Courts/ Jails for prisoners involved in petty offences and willing to confess, should be actively taken up by the High Courts and implemented in all districts.
  14. There should be a progressive and massive decriminalization of offences so that many of the wrongs, which are now given the status of crimes, are dealt with as compoundable tortuous wrongs remediable with a claim for compensation.
  15. Alternatives to imprisonment should be tried out and incorporated in the IPC, such as, concept of Open Jails, Borstal jails, special jails etc.
  16. Computerise the handling of criminal cases and with the help of the National Informatics Centre, develop programmes that would help in managing pendency and delay of different types of cases. 18) Increase in number of legal functionaries, infrastructure and man days of work to resolve pendency of cases and speedy trials for the undertrials.
  17. State should make certain provisions for compensation and rehabilitation of the victim in case of violation of rights and undue time that is consumed in the legal proceedings.

Way Forward

The essential aim of any theory of punishment (Retributive or Reformative) is or should be to reduce crime in a society. Ideally, a modern society, conforming to Reformative Theory,  seeks to not only reduce crime but also to ensure that individuals are transformed into contributing members of a society. Hence, the legal, political and administrative system of the country and society should collectively work to ensure that undertrials languishing in Indian jails are accorded their rightful and speedy trials, human rights and a life of dignity, rather than leaving them to mercy of our overburdened judicial processes.

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