The condition of undertrial prisoners remains one of the most pressing concerns in India’s criminal justice system. An “undertrial” is a person who has been charged with an offence but whose trial is yet to be completed. Unlike convicts, undertrials are presumed innocent until proven guilty. Yet, in practice, they often spend years in prison awaiting trial, enduring conditions that violate human dignity and constitutional guarantees. In India, where prison populations are overcrowded and justice delivery is slow, undertrials form more than two-thirds of the prison population. This article examines the rights of undertrial prisoners, the constitutional and statutory protections available to them, and the role of the judiciary in safeguarding their liberty.
The Scale of the Problem
According to the National Crime Records Bureau, more than 75% of India’s prisoners are undertrials. Many of them are charged with minor offences carrying short sentences, but delays in investigation, frequent adjournments, and lack of legal aid keep them incarcerated for years. For instance, a person accused of theft may spend three years in custody awaiting trial, even though the maximum punishment upon conviction may be two years. Such situations make a mockery of justice and highlight systemic failures.
The problem disproportionately affects the poor and marginalized, who cannot afford bail or legal representation. In effect, poverty becomes criminalized, with the underprivileged languishing in jails for want of resources.
Constitutional Protections
The Constitution of India guarantees several rights that directly protect undertrials.
- Article 21 guarantees the right to life and personal liberty. The Supreme Court has repeatedly held that this includes the right to live with dignity, the right to speedy trial, and the right to humane treatment in custody.
- Article 22 provides safeguards against arbitrary arrest, including the right to be informed of grounds of arrest and the right to consult a lawyer.
- Article 14 ensures equality before the law, which prohibits discrimination against undertrials based on economic or social status.
Together, these provisions make it clear that imprisonment before conviction must be an exception, not the norm.
Statutory Protections
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), replacing the old Code of Criminal Procedure, provides for bail, legal aid, and time limits for investigation. Section 479 (earlier Section 436A CrPC) mandates that undertrials who have spent half the maximum sentence prescribed for an offence in custody should be released on bail. This provision directly addresses prolonged detention without conviction.
The Legal Services Authorities Act, 1987 mandates free legal aid to those who cannot afford lawyers. Despite this, access to quality representation remains limited.
The Prisons Act, 1894 and subsequent prison manuals regulate conditions in prisons, though these are often poorly implemented.
Judicial Recognition of Undertrial Rights
The Indian judiciary has been a strong advocate for undertrials.
In Hussainara Khatoon v. State of Bihar (1979), the Supreme Court was appalled to find thousands of undertrials languishing in Bihar jails for years without trial. The Court declared that speedy trial is a fundamental right under Article 21 and ordered release of prisoners who had been detained longer than the maximum sentence for their alleged offences. This case was a turning point, bringing undertrial rights into the mainstream of constitutional jurisprudence.
In Sheela Barse v. State of Maharashtra (1983), the Court emphasized that undertrials, particularly women, must be protected from custodial violence and provided with legal aid.
In Kadra Pahadiya v. State of Bihar (1981), the Court stressed that the right to speedy trial is not merely about fairness but about preventing unnecessary suffering of innocent people.
In Bhagwan Rama Shinde Gosai v. State of Gujarat (1999), the Court directed that undertrials charged with offences punishable up to seven years should normally be released on bail.
Through these cases, the judiciary has consistently recognized that the presumption of innocence must be meaningful, not illusory.
Bail and the Problem of Access
While the law provides for bail, undertrials often cannot access it. Bail amounts are set without considering economic status, making them unaffordable for the poor. The Supreme Court has criticized this, observing in Moti Ram v. State of M.P. (1978) that bail should not be dependent on the accused’s wealth. Justice Krishna Iyer famously remarked that bail conditions must be tailored to individual circumstances, or else the poor would be imprisoned while the rich walk free.
The concept of default bail — release when investigation is not completed within the statutory time — is another safeguard. Yet, lack of awareness and poor legal aid mean many undertrials remain in custody despite being entitled to such bail.
Conditions in Prisons
Undertrials face overcrowding, inadequate healthcare, poor sanitation, and violence in prisons. In Sunil Batra v. Delhi Administration (1978), the Supreme Court held that prisoners, including undertrials, do not lose fundamental rights except those curtailed by lawful imprisonment. It prohibited solitary confinement and custodial torture.
The Court has also emphasized that undertrials should be kept separately from convicts, though this is often violated in practice. In Charles Sobhraj v. Superintendent, Central Jail (1978), the Court reiterated that prison conditions must be humane and consistent with dignity.
Recent Developments
In recent years, courts have continued to emphasize decongestion of prisons, especially during the COVID-19 pandemic. The Supreme Court directed states to release undertrials charged with minor offences on interim bail or parole to prevent spread of the virus.
Technology has also been introduced to reduce delays, with video conferencing for remand hearings and digitization of prison records. Yet, systemic issues of delay, lack of judges, and inadequate legal aid persist.
Conclusion
The plight of undertrial prisoners is not just a legal issue but a moral one. Detaining people for years without conviction violates the presumption of innocence and undermines the credibility of the justice system. While the Constitution, statutes, and judicial decisions provide strong protections, implementation remains weak