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A Deep-Dive Into Under-Trial Prisoners’ Long Wait For Justice

A young man in a prisoner's uniform looks extremely stressed

There’s a common saying – ‘justice delayed is justice denied’, which simply means that justice loses its meaning and value if it is postponed for a long time.

An important part of our criminal system is that there must be speed in the process of providing justice also known as speedy trials. In very simple words, under-trial prisoners are those people who are facing trial in any court and during the said trial are kept in judicial custody in a prison.

They are such prisoners who have been arrested for some crime and are waiting to appear before the magistrate.

The criminal justice delivery system in our country has seen more than 0.2 million undertrial prisoners being neglected for several years and in many cases it even exceeded the maximum sentence for the crime which they allegedly committed.

This is due to lack of coordination between the Centre, Judiciary & State Governments. Another reason is that they did not have anyone to stand as guarantors or assets to furnish as bail bonds.

There have been several cases where the amount of bail was disproportionately high due to which poor kept on suffering. These people need protection and consideration of law and criminal justice system more than anyone else.

This issue needs to be addressed and measures to tackle it must be implemented.

Who Are Under-Trial Prisoners?

As already mentioned an under-trial prisoner is an accused person who is kept in judicial custody during the period their case is being heard in the court. It has been defined by the Oxford Dictionary as – ‘A person who is on a trial in a court of law’.

The 78th Report of Law Commission includes a person who is in judicial custody on remand, during investigation in the definition of an ‘undertrial’. They cannot be yet called as a convict as their guilt has not been proved for now. Majority of undertrial prisoners are poor as they are unable to furnish bail for their release.

They are unaware about their legal rights including the right to free legal aid and the right to bail. They therefore become more vulnerable and suffer due to the delay caused by our criminal system.

There is difference between judicial custody and police custody as the person under police custody will be held at the police station in the physical custody of the police officers of such stations, while under judicial custody, they will be in the custody of a Magistrate in a jail.

According to the 78th report of the Law Commission as on April 1st, 1977, of the total prison population of 1, 84, 169, roughly 55% were under-trials. In Hussainara Khatoon case 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.”

This issue is nothing but a serious hindrance to a criminal justice system. ‘Innocent until proven guilty’ is accepted as a cardinal principle of our criminal law but undertrial imprisonment directly violates this particular principle as they are deprived of their liberty and thrown into jail before conviction.

They are innocent before the eyes of the law and yet they are treated as prisoners. These prisoners live in a very disturbing condition in jails. They don’t have medical care and are at various occasions exploited. This unrequited delay and detention not only violates their right to liberty but also amounts to denial of human rights.

Even though government made attempts to solve this problem, they are yet not able to do it. The under trials face a lot of problems, they are kept with the hardened criminals and are subjected to torture by their fellow inmates. Moreover, the prison as we all know is overcrowded leading to various health problems.

Despite various enactments and directions by the court, there is still no improvement in the treatment of undertrials. The number of undertrials in prison can be only be reduced by speeding up the trial, by periodic review of the cases of undertrials and simplifying the bail procedure.

Moreover, there must be a separate prison for undertrial prisoners. As we know poor do feel discriminated against when it comes to this issue. Therefore for now their living condition must be bettered.

Rights Of Under-Trial Prisoners

Our legal system has provided various rights to under-trial prisoners in order to better their situation. As per Section 436-A of the Code of Criminal Procedure, 1973 – ‘an under-trial prisoner who is not accused of an offence which is punishable with either life imprisonment or death, should be released, if they have been detained for half the period of imprisonment that is prescribed for the said offence.’

They have been provided constitutional right to a speedy and fair trial. They have been given the right to legal assistance under which they can avail desired legal aid to assist during their time as an under-trial prisoner.

In case any person does not have the required means to avail the same, they shall be given free legal services after making an application to the court. Along with this, they have right against inhuman treatment. This includes the right to be treated with dignity.

To this end, unless valid reason can be provided, they are not allowed to be handcuffed while being transferred from prison to court. Uday Mohanlal Acharya v. State of Maharashtra held that –

“Undertrial prisoners had an inalienable right to be released on default, even for non-bailable offences, if a charge sheet isn’t filed by the police within 90 days of police custody. When a person is accused of committing non-bailable offence, he can only be released on bail by the court if it is satisfied that the person will attend the court to stand trial, and will not tamper with evidence or obstruct police investigation in any manner.”

The Ground Reality Of Under-Trial Prisoners

It’s no news that everything is different on papers when we compare is to reality. Even with rights provided to under-trial prisoners, their condition is still somehow pitiful and distressing. Criminal Law of India as we know today is a replica of colonial times, which means that it is hostile to the weaker sections of society.

Such biasness has resulted in privileged people escaping the jail while it is full of the poor and unprivileged class of society. The hierarchy of courts and appeal system has led to a situation where the poor is not able to reach the temple of justice because of the heavy cost of its access.

Justice granted at higher cost and such involving long and daunting process indirectly means the denial of justice. Chapter six of The National Crime Records Bureau of the Government of India has reported that thousands of undertrials had been incarcerated for more than 5 years, and in states including Punjab and Delhi, a large number of prisoners were under-trials.

In Bihar, 30.4 % of the prisoners have been languished in jails for years, sometimes for periods longer than the period for which they would have served, if convicted. In the year 1993, out of the 7200 prisoners in the Central Jail Complex, only 900 had actually been convicted of a crime.

In Shri Rama Murthy v. State of Karnataka , Supreme Court mentioned that state had 193,240 people incarcerated out of which 137,838 were undertrials. In the 2000’s the Supreme Court had also continued to emphasize on the need to protect the undertrial prisoners.

The 2010 Indian government data in the regard of undertrial stated that the numbers of undertrials have drastically increased to 50,000 and there are several who languish in the jail without even being produced before the magistrate.

As per the report released by the NCRB there are a total of 1350 prisons in India and in the year 2019, the capacity of prisons increased by 1.90% however the number of prisoners increased by 2.69%, as compared to 2018.

This basically means that there was increase in the occupancy rate of prisons from 117.6% to 118.5%, which is a clear indicator that the prisons are overcrowded. The high occupancy rate is because of the large number of undertrial prisoners. They constitute nearly 70% of the prison population.

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 to 2 years, 6.7% for 2 to 3 years, 4.25% for 3 to 5 years and 1.52% of undertrials were confined for more than 5 years. Many of these numbers are those from ages of 18 to 30. They are spending prime of their lives behind bars.

Most of them are sole bread winners of their family, causing suffering to not only them but their families as well. In the eyes of society, there is virtually no difference between a convicted prisoner and an undertrial forced to spend years in jail.

Upon being released, the undertrials are affected mentally, including low self-esteem and mental health issues. Being incarcerated for years also brings about psychological trauma along with the societal stigma of being labeled as a criminal even if proved not guilty.

Even for a normal person, prolonged incarceration may lead to a mental breakdown. Sir Alexander Patterson while giving evidence before the Select Committee in 1930 stated that – “…I gravely doubt whether an average man can serve more than ten continuous years in prison without deterioration.”

Life for undertrial prisoners is therefore remarkably bleak. The recent pandemic has only worsened this situation due to restrictions and protocol the court has to face.

Role Of Judiciary And Authorities

Judiciary and authorities play a great role in bettering the condition of under-trial prisoners. Time and again judiciary has tried to improve the condition of the undertrials by laying down various directives in its judgments.

Indian authorities and the judiciary themselves have 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 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.”

In Sheela Barse V. State of Maharashtra , the apex court dealt with the issue of treatment of female prisoners in police lock ups. It issued various directions in order to improve their conditions and also provided adequate protection to the arrested people.

The Supreme Court in the case of Sharifbai v. Abdul Razak held that –

“If the accused person in not produced before the magistrate within the stipulated time, then such detention would be wrongful. Also, the accused person so arrested cannot be detained in custody by a police officer without informing him of the grounds for such arrest. He shall also be informed about his legal right to bail. Such right gives the arrested person an opportunity to apply for bail and to prepare any other defence in time.”

The Supreme Court further in case of Prem Shankar Shukla v. Delhi Administration condemn the use of handcuffs in chaining prisoners and held that no prisoner shall be handcuffed routinely or merely for the convenience of the custodian or escort.

In State of Rajasthan V. Balchand alias Baliay , the Supreme Court ruled that it is not necessary to detain the accused person in court if the appearance of the accused can be secured by other means. The court also stated that bail and not jail should be the norm.

In Sunil Batra case, the court observed that if a prisoner is subjected to bar fetters for a long period without having due regard to his safety, then this would violate his basic human dignity which is violation of our constitution.

The court also mentioned that solitary confinement has dehumanizing effect on the prisoner which violates their right under Article 21 of the Constitution.

In the year 2005, a PIL was filed before the Court in the case of Bhim Singh v. Union of India , which sought a more effective implementation of section 436A. In 2012, a set of directives was issued by the Ministry of Home Affairs to deal overcrowded prisons.

This can be ensured by periodic monitoring conducted by the states to identify undertrial prisoners eligible for release under section 436A. These are some of the major recommendations given by our judicial system till date –

1. Provisions of Section 167 of the Cr.P.C with regard to the time limit for police investigation in case of accused undertrial prisoners should be strictly followed.

2. The possibility of producing prisoners at various stages of investigation and trial, in shifts should be considered.

3. Institutions which are meant for lodging undertrial prisoners should be close to the courts.

4. Undertrial prisoners must be produced effectively before the presiding magistrates on the dates of their respective hearing.

5. Police functions should be separated and sufficient strength shall be provided to complete investigations on time.

6. When it comes to undertrial prisoners, adjournments should not be granted unless absolutely necessary.

7. The class of Compoundable offences under the IPC should be widened.

8. Alternatives to imprisonment should be incorporated in the IPC.

9. The criminal courts should exercise their available powers under Sections 258, 309 and 311 of the Cr.P.C in order to effectuate the right to speedy trial.

10. Remand orders should be self-limiting and indicate the date on which the undertrial prisoners would be automatically entitled to apply for bail.

11. Computerize the handling of criminal cases and with the help of the National Informatics Centre and develop programmes that would help in managing pendency or delay of cases.

12. Undertrial prisoners must be lodged in separate institutions such that they are away from the convicted prisoners.

13. There shall be an immediate increase in the number of judges and magistrates as proportionate to the general population.

14. In case of violation of any fundamental right of the prisoner, the state shall give adequate compensation.

The Way Forward For Undertrials

Every problem when discussed is done with the aim to get a solution for it. As we all know through various researches and data that this issue is not that easy to resolve.

It requires a comprehensive plan, and since it is a system wide problem, there is a need for an overhaul of the criminal justice system in India.

This could include revamping outdated laws like the Prisons Act which provide grieve penalties like solitary confinement and whipping. In the case of Sunil Batra v. Delhi Administration it was 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.”

Apart from this, there should be an emphasis on reducing the undertrial population by following the various suggestions, statutory provisions and other judicial decisions regarding the rights of undertrial. There are many judgments that actually acknowledge this situation as a grave problem but we still don’t see much vigor in solving this issue.

Therefore, prison reforms and other committee recommendations like that of Justice Mulla which advised Undertrial Review Committees to be streamlined should be taken very seriously. In the short term another suggestion would be that the undertrials should be housed in open jails where they can move around freely.

These steps can ensure that incarceration isn’t so punitive, as punishment should be reserved for those who’ve actually committed a crime. The state also needs to increase the compensation that is given to Public Defenders in order to encourage a strong legal system that caters to those who are not be able afford counsel.

Another step could be setting up of separate jails and isolating undertrials from convicts as it would prevent hardened criminals from exercising their deleterious influence over undertrials. This segregation would also change the attitude of jail authorities as well as the society towards under trials.

Furthermore the under trials who have been charged with petty crimes can be put in reformative homes instead and could be asked to do community service till the time they are released on bail. It will not only give them some purpose, but would be great contribution towards society as well.

Conclusion And Suggestions

No person shall suffer because of delay caused in our judicial system. Speedy trial is a right which cannot be taken lightly. Undertrials prisoners form the majority of prisoners in India according to recent NCRB reports and they continue to increase every year. Their problems are well known and well documented by the State.

There have been numerous judgments that do acknowledge their difficulties and unfairness as they are confined in prison. Various amendments have been made to statutory provisions that help to curb indiscriminate arrest. However, the problem still continues despite all these reforms.

This is mostly due to the mismatch between legal position and the actual implementation. Although this problem has been correctly identified, the issue still persists due to poor implementation of these laws and judicial decisions.

Therefore in order to see positive and drastic change, we have to be focused on proper implementation of existing reforms rather than the introduction of new ideas.

The law on numerous other occasions has asked for the improvement and better implementation of the existing systems, however things still have a long way to go in terms of alleviating prison capacity and ensuring better rights for the under trials.


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Featured image is for representational purposes only. Photo credit: Criminal Justice, IMDB.
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