Research Paper

On

A Socio Legal study of Prolonged Incarceration of Under Trials

in India
By
Neha Sachdeva
A3268622025

Under the supervision of

Dr.Meenu Gupta

In partial fulfillment of the requirements for the Degree

Of

Masters In Law
AMITY LAW SCHOOL

AMITY UNIVERSITY UTTAR PARDESH

SECTOR 125, NOIDA - 201303, UTTAR PARDESH
INDIA
ACKNOWLEDGEMENTS

The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project. All that I have done is only due to such supervision and assistance and I would not
forget to thank them.

I owe my deep gratitude to our project mentor Dr Meenu Gupta, who took keen interest on
our project work and guided us all along, till the completion of our project work by providing
all the necessary information for developing a good system.

I am thankful to and fortunate enough to get constant encouragement, support and guidance
from all Teaching staffs of Amity University which helped us in successfully completing our
project work.

Neha Sachdeva
LLM(CB&IL)
Table of Contents
DECLARATION.......................................................................................................................2
FACULTY CERTIFICATE.......................................................................................................3
ACKNOWLEDGEMENTS.......................................................................................................4
Abstract......................................................................................................................................6
CHAPTER 1- INTRODUCTION..............................................................................................7
1.1 UNDER TRIAL PRISONERS.........................................................................................7
1.2 STATISTICS OF UNDER TRIALS................................................................................9
1.3 REASONS FOR HIGH POPULATION OF UNDER TRIAL PRISONERS.................9
1.5 RESEARCH OBJECTIVES..........................................................................................12
1.6 RESEARCH QUESTIONS............................................................................................12
1.7 LITERATURE REVIEW...............................................................................................13
CHAPTER 2- PROBLEMS OF UNDER TRIALS IN INDIA................................................16
2.2 SPECIFIC PROBLEMS FACED BY UNDER-TRIAL PRISONERS.........................18
CHAPTER 3- REASONS FOR THE PROLONGED INCARCERATION OF UNDER
TRIALS....................................................................................................................................21
CHAPTER 4- CASES ANALYSIS OF UNDER TRIALS.....................................................23
CHAPTER 5- REFORMATIVE PREVENTION AND SOLUTION.....................................26
CHAPTER 6- CONCLUSION................................................................................................27
REFERENCES.........................................................................................................................28
Abstract
Prolonged incarceration during trial refers to long-term incarceration or incarceration of an
individual that is longer than usual or is on trial. Inmates in process are inmates who have
been in judicial detention but are awaiting investigation and trial by the competent authority
determined. There are several reasons why such an extension will continue to exist. Some of
the causes are indiscriminate arrests, insolvency or non-payment of public debt, delayed
police investigations, delayed trials and the failure of legal aid systems to function.
Considering the statistics, the consequences of such incarceration will have enormous
implications not only for individuals and their families, but also for society as a whole. This
study aims to focus on the main legal interpretations arising from the phrase "prolonged trial
detention" and the position of such prisoners in India's Criminal Procedure Code. It is
important to focus on the fact that corrective actions must be taken alongside reforms in light
of the impact of prolonged imprisonment on life on trial, families on trial and society as a
whole to ensure justice.
CHAPTER 1- INTRODUCTION
A criminal trial is a legal survey of the matter for a situation, the motivation behind which is
to arrive at a judgment of the matter as a reality or a connected truth that might prompt the
revelation of current realities being referred to and to get proof of such realities. is to do The
indictment and the litigants came for their grumbling. The predominant inquiry is whether the
respondent is liable or blameless. Reality that trials should be directed under decides that
safeguard the blameless and rebuff the guiltless, since the object is to fulfill equity, convict
and safeguard the honest.

Indictment proof, which should be for certain, should be founded on full legal assessment of
verbal and context oriented proof, not separated investigation. Most importantly there must
be speedy trial so that no one has to suffer superfluously as the condition of prisons in our
country is worse and the state of under trial incarceration is something disastrous than the life
of a convict person.

Article 21 of the Indian Constitution guarantees the right to life and personal liberty to all
Indian citizens. This cannot be curtailed by any person until and unless it is specified in any
law of the country. This fundamental right is for all persons including the accused and the
convicted persons. But the rights and issues of the under trial prisoners becomes unnoticed.
All the accused are innocent until proven guilty but, here the position of under trial prisoners
are different. They are incarcerated even before being convicted. There is a chance for these
people to be acquitted even after being in the jails for the long term. This will not only make
the lives of the under trial prisoners worse, but also their family members.

A long time ago, the Supreme Court remarked that “long term incarceration of under trials is
a crying shame on the judicial system.” This saying remains an important guiding principle
for the legislature and judiciary to make a positive change in the system. Even though there
are many new laws and reforms, this does not decrease the extent and duration of under trial
incarceration. The main aim of this article is to bring into light the problems faced by the
under trial prisoners and the reason for long term incarceration of the under trials.

1.1 UNDER TRIAL PRISONERS

Under-Trial Prisoners are non-convicted prisoners. In layman’s language when the accused in
is jail during the period of investigation, inquiry or trial of the offence in which he was
arrested can be known as under Trial Prisoners. The two elements (i) Accused in Jail (ii)
period from
arrest to the period just before the outcome of the criminal case are essential to explain the
term.

Generally, under-trial prisoners are those accused who are charged with non-bail able offence
and their bail has been denied or the accused who are charged with bail able offence and their
bail has been granted as a matter of their right provided by the law but fail to furnish the bail
bond and sureties. It also includes the accused who has been granted bail in the non-bail able
offence but they failed to fulfil the mandatory conditions stated in order by the courts of law.

Under trial prisoner is a person who has been incarcerated in the prison, during the
investigation, inquiry, or trial period for the offense that he/ she is accused of. In other words,
a person who is not convicted and being held in custody waiting for the trial is known as an
under trial prisoner.1

When a person is caught up in the commission of a crime and there is circumstantial evidence
against him, then he is arrested. After an offender is being arrested, the next step to about his
confinement which is dealt with either by the court or the police. This process involves giving
bail to the said accused. The term Bail is not defined in the code, but all the offenses are
classified into bail able and non-bail able offenses. The bail able offenses are less serious
offenses and bail should be given to the accused. Whereas in non-bail able offenses, bail
cannot be claimed as a matter of right and it is upon the discretion of the concerned court to
give the bail according to the CrPC provisions. Under trial, prisoners are the prisoners, who
are put into the prison either under a non-bail able offense or under a bail able offense but
who are unable to get bail. “The reasonableness of under trial detention can be measured
based on the circumstances of the cases such as the seriousness of the offenses, the risk of
disappearance of the suspect, the risk to induce or influence of the witnesses and the conduct
of the domestic authorities, including the complexity of the investigation.”2

Of course in Indian law, these under trial prisoners have certain legal rights that were
formulated by the legislature and judiciary. Nevertheless, these laws which are dealing with
the under trial prisoners are considered to be week, ineffective and flawed. This can be seen
in the raise of under trial prisoner population in India.

1
https://www.lexico.com/definition/Under-trial
2
“Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and
Lawyers.” https://www.ohchr.org/documents/publications/training9chapter5en.pdf.
1.2 STATISTICS OF UNDER TRIALS
The National Crime Records Bureau (NCRB) releases the Prison Statistics India reports
annually. Its 25th edition statistical report on December 2019 created a shock wave in the
country. According to it, out of 4,78,600 total prisoners, 3,30,487 are the under trial
prisoners. In other words, 69.05% of the total prisoners are the number of under trial
prisoners in the various jails of the country. Out of this, 50.5% of under trial prisoners were
lodged in District Jails, 36.7% in Central Jails, and 10.6% in Sub Jails 3. Based on under trial
population, India ranks 15th out of 217 countries.[5] Among these under trial prisoners,
74.08% of prisoners were incarcerated for a period up to 1 year 13.35% of prisoners up to 1
to 2 years, 6.79% of prisoners up to 2 to 3 years, 4.25% of prisoners up to 3 to 5 years and
1.52% of prisoners were incarcerated for more than 5 years. From this, the trend, ground
reality and the statistic of the under trial prisoners can be seen.

1.3 REASONS FOR HIGH POPULATION OF UNDER

TRIAL PRISONERS
One of the main reasons for the prolonged incarceration of under trial prisoners even in petty
cases is that they are not in the position to get bail bonds and get released on the bail. Majorly
these under trial prisoners are the people from poorer and under-privileged groups of the
society, who are from agricultural or rural background. These people are neither aware of
their legal rights nor have sufficient money and means to represent their case.4

According to a source, most of the under trial prisoners who face long term incarceration is
SC’s, ST’s and OBC’s. These people who are being oppressed by the people in power face a
high level of discrimination as they belong to “socio-economically marginalized groups” and
have poor legal representation.5 Even in the case of Hussainara Khatoon & Ors v. Home
Secretary, State of Bihar6 the Supreme Court has observed that “the under trial prisoners
languish in jail because they are downtrodden and poor and not because they are guilty.”
Another important reason for more number of under trial prisoners is because of delay in
conducting trials. These are some of the reasons for more population of under trial
incarceration in Indian jails.

3
Prison Statistics India, NCRB (2019). https://ncrb.gov.in/sites/default/files/Executive-Summary-2019.pdf.
4
https://www.prisonlegalnews.org/news/.
5
Aparna & Keerthana, Bail and Incarceration: The State of Under trial Prisoners in India (2017).
6
1979 SCR (3) 532
1.4 PROBLEMS OF PROLONGED UNDER TRIAL
INCARCERATION

All the detainees have a right to a trial or to release within a reasonable time. There can be a
violation of the right to liberty and fair trial due to prolonged under trial incarceration.
Excessive pretrial incarceration violates the right to a speedy trial, undermines the rule of
law, leads to overcrowding of prisons, and can lead to custodial excesses. This will not only
affect the lives and livelihood of the prisoners but also their family members. As mentioned
earlier, most of the under trial prisoners are poor and might be the bread winners of their
family. Firstly, after getting arrested the under trial prisoners will lose their job. In turn, the
family members who are dependent on him will lose their source of income. As there is no
income, neither the family members can lead their life nor can they help the prisoner. This
will make their life a living hell. If in case he/ she is a single parent, then the lives of the
children become worse and are exploited. This under trial incarceration punishes the people
even before they are convicted for the crime committed.

There are many problems and grave consequences to the prisoners because of the under trial
detention. The lives of these prisoners in prison become harder and it may drive them crazy.
Prisoners as a whole will be in a pathetic condition in the jails. The conditions of these under
trial prisoners are even worse. Their physical and emotional well-being is damaged.

"The outcomes of pretrial confinement are huge. Assumed honest respondents are frequently
presented to mental and actual hardship of life in jail under more troublesome circumstances
than those forced on indicted litigants. The respondent in jail will lose his employment in the
event that you have one and you will not have the option to add to the planning of the
safeguard. Similarly, the weight of your capture is regularly blameless of your family. It
weighs vigorously on individuals."7

Every accused is innocent until they are convicted. Some of the under trial accused may not
have committed the crime itself. By any circumstances, if they are kept with the convicted
prisoners, then there are more chances of inculcating criminal behaviors in these under trial
prisoners. Some of the convicted criminals and drug users may influence these under trial
prisoners.

7
Motiram & Ors. v. State of Madhya Pradesh AIR 1978 SC 1594.
The prolonged incarceration of these under trial prisoners can cause many physical and
mental problems. They can result in depression and nervous & mental breakdown. They can
also be tortured and ill-treated by the other inmates and the prison officers. Some prisoners
undergo this suffering only to find that they have not committed the crime. There are many
instances like this. In 1996, three Kashmiri men were arrested by the Delhi police for their
alleged roles in the Lajpat Nagar market bomb blast and later in the Samlethi blast case. On
July 22, 2019, these three were acquitted after 23 years of incarceration. Among the three,
Mohammad Ali Bhat was just 25 years old when he was arrested and at the age of 48 years,
he was found to be innocent. He has lost 23 prime years of his life in prison because of
India’s lethargic justice delivery system.8 Some under trial prisoners even spend many years
inside the prison exceeding the maximum sentence, which is prescribed for the offenses that
they are charged for.

The physical and mental sufferings that are experienced in the jail can haunt the under trial
prisoners even after their release. These under trial prisoners might have a lack of confidence
in the society after their acquittal. They are regarded as criminals in the eyes of society,
which in turn damages the life and livelihood of the under trial prisoners and their families.

8
https://www.indiatoday.in/india/story/lajpat-nagar-blast-case-3-kashmiri-men-found-innocent-after-23-years-
in-captivity-1573692-2019-07-26.
1.5 RESEARCH OBJECTIVES
1. Understand the meaning of the coined term “Prolonged Incarceration of Under-trials”.

2. Explore the statistics in relation to the number of under-trial prisoners.

3. Assess the position of such prisoners in India under the Criminal Procedure Code.

4. Evaluate the effects of the such incarceration on the aspects and wellbeing of the lives of
the prisoners.

5. Analyze the various reforms that have been initiated and provide suggestions for
improvement.

1.6 RESEARCH QUESTIONS

The Research questions, this paper seeks to answer the following questions:

1. What is the primary legal interpretation that is to be drawn from the phrase “Prolonged
Incarceration of Under-trials”?

2. What is the position of such prisoners in India with respect to the Criminal Procedure Code?

3. What are the effects of such incarceration?

4. What steps have been taken by the judiciary in order to prevent such incarceration?

5. What reformative steps can be taken in order to improve the current circumstances?
1.7 LITERATURE REVIEW
A court detainee makes up a huge extent (65.7%) of the jail populace. The two individuals of
the 2,45,244 in jail during the trial are viewed as guiltless according to a lawful perspective.
How might a framework that calls itself fair and legitimizes denying 2,45,244 "guiltless"
individuals of their freedom?

"The results of pretrial detainment are huge. Assumed blameless litigants are frequently
presented to mental and actual hardship of life in jail under more troublesome circumstances
than those forced on sentenced respondents. The litigant in jail will lose his employment in
the event that you have one and you will not have the option to add to the arrangement of the
safeguard. Similarly, significant, the weight of your capture is regularly blameless of your
family. It weighs vigorously on individuals."9

A compelling criminal equity framework should essentially guarantee that the supposed
wrongdoing carried out by the denounced is dealt with. Among them is the recorded
foundation of the detainment of those blamed for carrying out a wrongdoing. Contingent
upon the reality of the wrongdoing10, the police should be enabled to keep an individual for
24 hours, after which the legal specialists should give another confinement. 11 Everyone is
qualified for bail, for certain exemptions.12

The Criminal Procedure Code (Cr.P.C.) of 1973 doesn't characterize the expression "bail",
however violations are named subject to bail and not expose to bail. The previous is anything
but a genuine wrongdoing and those blamed for perpetrating them are qualified for bail when
they will do as such. Assuming the individual is persuaded that the person should go to court
to show up in court, the court doesn't alter proof, influence observers, or slow down police
examinations. He doesn't perpetrate some other wrongdoing or obstruct the interests of
equity.13 Despite showing up fair, the bail arrangements and their execution are exceptionally

9
Moti Ram and Ors. V. State of Madhya Pradesh AIR 1978 SC 1594
10
No person can be detained by the police in a bail able offence if s/he is ready to furnish bail. See section 436
Cr.P.C
11
See Article 22 of the Constitution of India and Sec 167 Cr.P.C.
12
Section 436, 436A, and 437 Cr.P.C. read with the Supreme Court judgments like the one in State of Rajasthan
vs. Balchand AIR 1977 SC 2477 where it was held that bail and not jail, should be the basic rule.
13
State of Rajasthan vs. Balchand AIR 1977 SC 2477 where it was held the “basic rule may perhaps be tersely
put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the
course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the
like, by the petitioner”. Also see Gudikanti Narasimhulu and Ors. v. Public Prosecutor, High Court of Andhra
Pradesh AIR 1978 SC 429.
prejudicial. Beginning around 1971, the Gujarat State Government designated Legal Aid
Commission said:

The bail framework oppresses the poor since destitution keeps them from posting bail. This
separation happens regardless of whether the bail sum set by the equity of the harmony isn't
high. By far most of individuals brought to court in criminal cases are poor to the point that
even little bonds are hard to pay.14

The evil with the bail framework is that helpless respondents need to depend on exposure and
master assurances to pay bail, or endure pre-trial confinement. The two results are loaded
with extraordinary trouble for poor people. At times, the respondent's poor need to get away
from their cash through exposure and master underwriters, and at times venture into the red to
pay them to get their delivery. Then again, he is denied of his freedom without trial and
sentence, which has genuine consequences.15

The Supreme Court decided that "unjustifiable" savage and exorbitant guardianship "on
account of unavoidable incarceration makes the bail disavowal irrational, and the delivery
support strategy is legitimized." In countless cases, preventive detainment is kept away from
and pointless. Unpredictable captures by the police, obliviousness of lawful privileges, delay
in trials, hesitance of the courts to allow bail and powerlessness to concede ensures are a few
of the reasons that have prompted the superfluous confinement of countless individuals
arraigned. The Supreme Court has known about this for quite a long time and has formulated
strategies and recipes to get detainees delivered on bail in court16. The association
government likewise perceived the reality of the circumstance and changed Cr.P.C. Join free
bail arrangements. This paper researches the legitimate circulation of bail under the Cr. PC,
contending that rebelliousness with current legitimate arrangements is the primary
justification for the huge expansion in the legal populace in jail. It likewise asks jail
specialists and jail guests to assume a functioning part, focusing on working on the
predicament of prisoners in court.

14
Report of the Legal Aid Committee appointed by the Government of Gujarat 1971 (headed by Justice P.N.
Bhagwati (p. 185).
15
Ibid.
16
See for example, State of Rajasthan vs. Balchand AIR 1977 SC 2477; Gudikanti Narasimhulu and Ors. v.
Public Prosecutor, High Court of Andhra Pradesh AIR 1978 SC 429; Moti Ram and Ors. V. State of Madhya
Pradesh AIR 1978 SC 1594; Hussainara Khatoon and Ors v. Home Secretary, Bihar, Patna AIR 1979 SC 1360;
Supreme Court Legal Aid Committee v. Union of India and Ors 1994(3) Crimes 644(SC); Common Cause, A
Registered Society Through Its Director v. Union of India and Others (1996) 4 SCC 33.
Basically, two contravening principles are encountered by many great jurists of the time in
the case of a person who is charged of a crime but is not convicted of the crime. The first and
foremost principle is the “presumption of innocence” and a person unless proved of the
offence is to be treated as an innocent in the eyes of law17 and the second issue is – it is
primilarly the duty of state and courts established to see that justice is done to people or the
victims. So, for achieving of the justice, the process of investigation and examination of
witnesses and production of accused in court of justice is to be done without any lapses.18

In these two contravening provisions, which is of the high probability and balance is the main
question of law and is incapable of resolution in a simple manner, now rather than
considering this issue it would be better if we fall back into the provisions of Criminal
Procedural Code (Cr. P. C.) and deal with some basics of the code.

After the criminal law is set into motion, by the registration of an FIR, the arrest of the
offender is the next step and his confinement is the next issue, whether dealt by court or
police is concerned matter, which involves in giving bail to the accused.

“Bail” is not specifically defined in the code, but the offences are classified into Bail able and
non- bail able offences. In Bail able offences bail can be claimed as a matter of right, whereas
in the case of non- bail able offences it cannot be claimed as a matter of right, it depends on
the discretion of the court as per the provisions of Cr. P. C.

So, when a person is arrested with or without a warrant he can be termed as an under trial
prisoner, and he has various rights, of course.

17
72nd law commission report 1.9 para
18
Madhurima on Under-trial prisoners and the criminal justice system, para 14
CHAPTER 2- PROBLEMS OF UNDER TRIALS IN
INDIA
Despite the relatively low number of persons in prison as compared to many other countries
in the world, there are some very common problems across prisons in India, and the situation
is likely to be the same or worse in many developing countries. 19 The main problems which
are usually encountered in prisons by the under trials are described below:

1. Overcrowding: The Law Enforcement Assistance Administration National Jail Census of

1970 revealed that 52% of the jail inmates were awaiting trial (Law Commission of India
1979). This number itself shows that there is huge overcrowding in the prisons. Obviously, if
prison overcrowding has to be brought down, the under-trial population has to be reduced
drastically. This, of course, cannot happen without the courts and the police working in
tandem. The three wings of the criminal justice system would have to act in harmony. Of
course, the Fast Track courts have bought a slight change in the position of under trials, but
their position is not better than the past which is the serious truth of the present times. The
answer to this problem would lie in the increase in the number of courts, to decrease the work
pressure on the judges, and the main of all the answers is the ending of “adjournment
culture”.

2. Corruption and extortion in prisons: Extortion by prison staff, and its less aggressive
corollary, guard corruption, is common in prisons around the world. The prison guards are
usually given extremely low salary, so this point would act as an aggravating factor which
encourages the prison guards to take corruption which leads to the bias in the situation of the
under trials in India and most of the developing nations across the world. This problem is so
severe that some of the under trials get special foods, cellular phones, special comforts etc. as
in exchange to the bribing of the guards. An unpublished PhD dissertation from Punjab
University on “The Functioning of Punjab Prisons: An appraisal in the context of correctional
objectives” cites several instances of corruption in prison. Another article suggested that food
services are the most common sources of corruption in the Punjab jails. Ninety-five percent
of prisoners felt dissatisfied and disgusted with the food served.

3. Prison violence: Prisons are often dangerous places to those people who live in. An
example can be taken in the case when a three-day riot and standoff in the Chappra District
prison in Bihar towards the end of March 2002, 6 prisoners died in the shootout that
occurred when

19
Prisons in India: An overview of reforms and current situation, pg 8
commandos of the Bihar Military Police were called in to quell the riots. 20 Usually the weak
and new prisoners are taken and are subjected to the various difficulties in the prison, usually
they are made to clean the toilets and are made to sleep near the unclean toilets without any
blankets. They are usually beaten badly by the co-prisoners if they don’t do the works
specified to them. Another example of prison violence which shook the entire world in terror
is the incident which took place in Brazil i.e. on 2nd October 1992, at least 111 people were
killed and 35 wounded by military police who were called in the House of Detention after a
scuffle broke out between two gangs of prisoners allegedly over payment for marijuana.
4. Homosexual maltreatment: Prisons are spots where individuals of a similar sex are housed.
Being isolated from their normal accomplice’s powers detainees to look for elective ways of
fulfilling their sexual inclinations. This frequently observes escape clauses in gay
maltreatment focusing on youthful and weak individuals. The opposition with respect to the
detainees prompts the compounding of brutality against them. Every now and then, detainees
are presented to enormous gay gangbangs. In addition to the fact that it causes genuine
wounds, for example, burst of the butt and the spread of physically sent illnesses like
HIV/AIDS, yet it can likewise make serious injury detainees and power a few prisoners to
end it all. Any other way, they will be extremely furious and disappointed with themselves
and will take it to the following blameless prisoner.
5. Medical issues: Most detainment facilities deal with the issue of congestion and an absence
of adequate room to hold prisoners in protected and solid circumstances. Most detainees in
penitentiaries come from financially impeded areas of society where illness, hunger, and
absence of clinical benefits are far and wide. At the point when those individuals are
undesirable and bunched together, contaminations and irresistible illnesses are bound to
spread. An example study directed by the National Human Rights Commission of Korea in
mid-1998 uncovered that 76% of passing in Indian jails were because of the awfulness of
tuberculosis.
6. Deranged detainees: not very many, insane detainees make up one more extent of the
populace and are generally overlooked and forgotten by both the rest of the world and within
world.21 However, given the idea of the sickness and general social mentalities, they structure
the greater part. An awful survivor of denials of basic freedoms. In any event, for the normal
individual, prolonged incarceration can prompt memory shortcoming, and that is the air.
Many individuals are very nearly such a breakdown and endeavour self-destruction." It is

20
Access to Justice for Under-trial Prisoners: Problems and Solutions, by Shree Kumar
21
Mentally ill prisoners constituted 0.1% of the total prison population for the year ending in 2000. Source:
Prison Statistics 2000 at page 21.
exceptionally dicey that the normal man can be condemned to jail for over 10 years without
declining.22 An illustration of a deranged detainee is Ajay Gorse, who spent just about 37
years in jail during a trial" It was blamed for killing his sibling in 1962. They called him
insane. Nobody went to see him after his mom passed on in 1968. He was simply forgotten
by the entire world. He can't leave it until he's judged, and except if he can be judged in light
of the fact that he was insane. At last, this is the situation of the Clerk of the Supreme Court
of India. Taken before, he was requested moved from jail to a Christian evangelist in 1999.
The case was a situation where issues during trial with dysfunctional behavior were very
much reported. To the rest of the world. In this manner, many lives are forfeited to our Indian
legal executive.23

2.1 GROUND REALITY AND STATISTICS

As per Prison Statistics India 2019, a report released by the National Crime Record Bureau
(NCRB), there are a total of 1350 prisons in India. In 2019, the capacity of prisons increased
by 1.90% but the number of prisoners increased by 2.69%, as compared to 2018. Thus, the
occupancy rate increased from 117.6% to 118.5% between 2018 and 2019. This rate has been
quite consistent over the years.

The high occupancy rate indicates the problem of overcrowding in prisons. This is due to the
large number of Under-trial prisoners. India ranks 15th out of 217 countries on the basis of its
Under-trial population. Under-trial prisoners formed 70% of the total prison population in
2019. This number has been consistently high, at an average of 66.97% over the past years.
The number of Under-trial prisoners increased by 2.15% between 2018 and 2019; of these,
only 91 were civil inmates.

As per the Prison Report, many Under-trials languish in jails for several years. 74.08% of
Under-trials were confined for up to 1 year, 13.35% for 1-2 years, 6.79% for 2-3 years, 4.25%
for 3-5 years and 1.52% of Under-trials were confined for more than 5 years.

2.2 SPECIFIC PROBLEMS FACED BY UNDER-TRIAL

PRISONERS

22
Quoted in Preface of Report of the All India Committee on Jail Reforms Vol. I [1980-83], Ministry of Home
Affairs, Government of India at page vi. This reported shall hereafter be referred to as the Mulla Committee
report after the name of its Chairperson – Mr. Justice A.N. Mulla
23
Access to Justice for Under-trial Prisoners: Problems and Solutions, by Shree Kumar, in Pg. 2
1) The Right to Speedy Trial - as recognized 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. Many a times, the escorting police personnel merely produces the remand papers in the
courts instead of actually producing the prisoner in front of the magistrate. This practice is
widely reported, notwithstanding the strict requirement of the law in 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.’

2) Right to bail is denied even in genuine cases. Even in cases where the prisoner was
charged with bail able 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 Under-trials.
It is also important to point out that the system of giving bail which is mentioned in sections
436 to 450 in the Code of Criminal Procedure, 1973 is also unjust. This is because according
to the provisions of the code a person released on bail is required to execute a personal bond
and bond of security for a certain amount of money. As a result the poor who cannot afford to
avail surety have to suffer in jail till the case is over.

3) Some of the judges even at the High Court level are not following the guidelines laid
down by the Supreme Court on bail and grant of the same is dependent upon the attitude of
each judge. Standards cannot become prisoners of the whims and fancies individuals.
Authority is to be exercised with responsibility.

4) Large number of persons including women and children are detained under Section 109
of the Criminal Procedure Code provides for failure to furnish requisite security for keeping
good behaviour. The police usually pick them up “because the number of cases had to be
brought up to the specified figure”. The authorities refuse to release them without bail
whereas the standing law on Section 110 says that you cannot ask for bail from such persons,
only the history ticket is required.

5) In the absence of a system, that takes a proactive role in providing legal services to
prisoners their right to effective Legal Aid is also violated due to politicisation of legal aid
schemes as many lawyers are hired on political consideration who get a fix salary without
the pressure of disposing off cases at the earliest.
Even today, the order of Dr. A.S. Anand – former Chief Justice of India on holding Special
Courts in Jails for prisoners involved in petty offences and willing to confess to their guilt is
not being implemented at least in Madhya Pradesh. If implemented by the High Court and
followed judiciously, it can bring lot of succour.
CHAPTER 3- REASONS FOR THE PROLONGED
INCARCERATION OF UNDER TRIALS
There are various reasons for the burgeoning population of Under-trial prisoners. Delay in
conducting trials is one of the prime causes. The total number of Under-trials is rising;
however, the percentage of Under-trials who spend less than one year in prison is declining,
implying that more Under-trials are being detained for longer than one year, due to delayed
trials. This is despite the fact that accused persons have a ‘right’ to speedy investigation
and trial under Article 21 of the Constitution and Section 173 of the CrPC (as was held in
the case of Vakil Prasad Singh v. State of Bihar).

Another reason is the lack of easy bail in India. In Hussainara Khatoon and Ors. v. Home
Secretary, State of Bihar, it was held that indigent Under-trials can be released on personal
bond without any surety, when there is no risk of absconding. This is also permitted
under Section 436 of the CrPC. Under Section 436A, they have the right to be released on
bail or personal bond with/without sureties, if they have undergone detention for half or entire
of the maximum period of imprisonment for that offence. Further, as was held in Uday
Mohanlal Acharya v. State of Maharashtra, Under-trial prisoners have the indefeasible
right under Section 167 to be released on default bail (even for non-bail able offences), when
their judicial custody exceeds 90/60 days, but no charge sheet is filed by the police. However,
many Under-trials still spend more time in jail than the sentence they would have got had
they been convicted. This is because judicial authorities often deny bail for non-bail able
offences, set the bail amounts high and insist on sureties, instead of granting release on
personal bonds, which results in long periods of imprisonment for poor people accused of
committing petty crimes.

Another problem is that of indiscriminate arrests. Section 41 of the CrPC was amended in
2009 to prevent arbitrary arrests. Courts have also held that arrests should be an exception
and not the rule (See Joginder Kumar v. State of Uttar Pradesh). Moreover, in the case of
Arnesh Kumar v. State of Bihar, it was held that not only should police officers give reasons
for arrests, but Magistrates also should apply their mind while continuing the detention under
Section 167. However, these developments have not been very successful in curbing the
problem.

Yet another issue is that the majority of the Under-trial prisoners are illiterates (28.6%) or
dropped out of school before Class X (41%). So, a lot of them are not aware of their rights.
Further, most of the Under-trials (about 65%) are from the Scheduled Castes, Scheduled
Tribes
and Other Backward Classes. 19% of the Under-trials are Muslims. When compared to the
proportion of these communities in the general population, it is seen that they are over-
represented as Under-trials. This is because they belong to socio-economically marginalised
groups, who have poor/no legal representation, and face high levels of discrimination. The
police often implicate them in false cases, to harass them and clear their backlog of unsolved
cases.

Under Article 22 of the Constitution, Under-trials have the right to consult and be defended
by a legal practitioner of their choice, as was held in State of Madhya Pradesh v. Shobharam.
Legal aid has also been held to be an inalienable element of ‘just, fair and reasonable
procedure’ under Article 21. However, many poor Under-trials do not file bail applications
due to ignorance of the free legal aid system or for want of advocates. Even the appointed
legal aid counsels do not provide effective representation. Moreover, legal aid is often limited
to the trial process. This is problematic since the pre-trial stages are largely controlled by
police and prison authorities, resulting in a power imbalance between the authorities and the
accused persons. Thus, it is at the pre-trial stages that the accused persons are particularly
vulnerable to a violation of their rights, and need legal aid the most.

Another reason for the high Under-trial population is delay in production of Under-trials in
court, due to non-availability of police personnel who have to escort them to the court,
thereby resulting in automatic extension of custody. Although videoconferencing facilities
have been introduced, they are severely limited. As of 2018, only 929 district courts and 342
prisons had such facilities. The problem is aggravated in case of women Under-trials, due to
the need for female police escorts.
CHAPTER 4- CASES ANALYSIS OF UNDER TRIALS
Mr. Justice Brennan says that- “Nothing rankles more in the human heart than a brooding
sense of injustice”.24 “Humane considerations and constitutional requirements are not, in this
day, to be measured by dollar considerations....”25 Suggestions for maintaining under trials as
mentioned in Hussainara Khatoon v. State of Bihar26:

1. In jail a broad division into two categories of minor offences and major offences should be
made.

2. The under-trial prisoners who were directed to be released by court on their personal bond
are to be periodically produced before the Magistrates in compliance with requirement of the
proviso to section 167(2).

3. Under-trial prisoners who have been in jail for a period of over six to seven years the
requirement of the proviso to section 167(2) was complied with in their case.

4. Assuming the jail term has terminated, he should be delivered right away. They can't post
bail for the individuals who have been accused of bail able violations yet have not applied for
abandon their benefit or are as yet in jail since they are excessively poor. Or then again, on
the off chance that an individual showing up before an equity of the harmony doesn't know
about the option to acquire bail and, due to his destitution, illuminates him regarding the
option to demand bail and can't employ a lawyer to help him. All things considered, it is the
public authority's obligation to furnish litigants with lawyers to tie down bail by presenting
the proper applications to the equity of the harmony.

5. Maneka Gandhi v. Union of India 27 that when Article 21 provides that no person shall be
deprived of his life or liberty except in accordance with the procedure established by law, it is
not enough that there should be some semblance of procedure provided by law, but the
procedure under which a person may be deprived of his life or liberty should be reasonable,
fair and just.

6. Therefore, accused when he has to go through the trial without legal assistance, cannot
possibly be regarded as “reasonable fair and just”. The court should consider the probable

24
By Justice Brennan cited in Hussainara Khatton v. State of Bihar, 1979 AIR 1369, 1979 SCR (3) 532
25
By Justice Blackmum cited in Hussainara Khatton v. State of Bihar, 1979 AIR 1369, 1979 SCR (3) 532
26
Hussainara Khatoon v. State of Bihar,1979 AIR 1369, 1979 SCR (3) 532
27
1978 AIR 597
sentence that will follow if a conviction is obtained. The more serious the likely consequence,
the greater is the probability that a lawyer should be appointed.

7. The State cannot be permitted to deny the constitutional right of speedy trial to the accused
on the ground that the State has no adequate financial resources to incur the necessary
expenditure needed for improving the administrative and judicial apparatus with a view to
ensuring speedy trial.

“What faith would these people have in our system of administration of justice? They have
always come across “law for the poor” rather than “law of the poor”. The law is regarded by
them as something mysterious and forbidding-always taking something away from them and
not as a positive and constructive social device for changing the socio economic order and
improving their life conditions by conferring rights and benefits on them. The result is that
the legal system has lost its credibility for the weaker sections of the community. It is,
therefore, necessary that we should inject equal justice into legality and that can be done only
by dynamic and activist scheme of legal services.” This is the anguish expressed by Supreme
Court about the methods employed by prison authorities and State towards under trials.

Sunil Batra v. Delhi Administration28:

1. Lawyers and Judges are to be nominated to visit the prisons

2. Lawyers designated by nearby appointed authorities, meeting judges, unrivaled courts or

the Supreme Court will be given full offices for meetings, visits and private correspondence
with prisoner’s subject to security and disciplinary contemplations. The lawyers hence
assigned are obliged to visit, register and report intermittently to the relating courts. The
outcome is connected with legitimate disappointment.

3. The grievances safe will be kept up with by or under the request for the District Security
Judge and the Session Judge. These letter drops will be opened as regularly as proper and
suitable move will be made against grumblings. All prisoners should approach such boxes.

4. The Justices of the Peace and Local Legislative Judges visit the prison foundations of their
ward, either actually or for their benefit, to give successful chances to air legitimate
discontent, where they complete the fitting examinations, and the relating restorative
moves should be

28
1980 AIR 1579, 1980 SCR (2) 557
made. On the off chance that relevant, you should illuminate the Superior Court to start
Habeas Corpus.

5. Forlornness or disciplinary cell, difficult work or dietary changes, for example, agonizing
added substances, disavowal of other discipline or honor and solace, move to different
penitentiaries with criminal results, meeting judges Should not be forced without legal
approval. It is hard to give data and clarify crises. Such data will be given inside two days of
the activity.

6. The court can likewise make a request assuming it finds the dangerous perspective dubious.

7. In the event that a detainee falls because of mental torment, mental tension or actual pain
past the lawful furthest reaches of a lawful jail, the jail organization will be considered
answerable for unnecessary torment. In actuality, assuming powerful detainees can gain the
advantages and freedoms to keep away from or diminish the hardship understood in the
sentence, the prison foundations ought to be called to do as such.

8. Prisoners’ Handbook is to be made in the regional language and provide them freely to
inmates.

9. Prisoners should be allowed to meet their family members.

10. When offences are alleged to have taken place within the prison, there should be no tinge
or trace of departmental collusion or league between the police and the prison staff.
CHAPTER 5- REFORMATIVE PREVENTION AND
SOLUTION
As these under trial prisoners are one of the most vulnerable sections of the prison population
they need more help and protection. These prisoners should not suffer in the jails before they
are proven guilty in the eyes of laws. One of the main solutions for preventing the long term
imprisonment of the under trials is speeding up the investigation and trials. For example;
there should be an immediate increase in the number of judges and magistrates and special
courts in jails. The method of video conferencing can also be brought into practice. In this
way, the number of cases heard can be increased. Next is the enforcement of the Legal Aid
system in the country. Every Indian has a right to legal aid according to Article 39 A of the
Indian Constitution. As most of the under trial prisoners are illiterate and poor, they need
proper guidance for a fair trial. It is the duty of the state to help them find a lawyer from the
beginning when the accused is first brought before the magistrate. As said in the case of
Hussainara Khatoon & Ors v. Home Secretary, State of Bihar29, it is also the duty of the
District and Session courts to inform the accused about his right to free legal aid.

To ensure justice for under trials it is very important to implement the existing provisions of
the Code of Criminal Procedure effectively. All the agencies of the criminal justice system
including the police, the judiciary, the prosecution, the defense lawyers, and the prison
department should adopt an intensive and a well-coordinated approach to make the lives of
the under trial prisoners better. There are many existing laws in the Indian justice system. It
should not only be in the papers but should come into force. For example; there should be
strict implementation of Section 167 of the CrPC which lays down the maximum period
within which the police investigation must be completed and a charge sheet filed before the
court. This section should be strictly followed by the police and the courts.

Decisions about custody or release of an accused should not be influenced by factors such as
gender, religion, background, financial conditions, or social status. The right to a speedy trial
and the right to bail which have been considered as fundamental rights need to be properly
enforced by the judiciary to access justice.30 The above mentioned are some of the solution
for the said problem.

29
1979 SCR (3) 532
30
Niranjan Sahoo and Vivek Jain, Justice System in Crisis: The Case of India’s Under-trial
Prisoners (2015), https://www.orfonline.org/wp-content/uploads/2015/08/IssueBrief_103.pdf
CHAPTER 6- CONCLUSION
The above-mentioned discussions reveal the state of under trial prisoners in India. Due to
prolonged incarceration, the under trial prisoners face a lot of challenges. This not only makes
the lives of the under trial prisoners worse, but also the family members who are dependent
on him/ her. It cannot be said that there should be an early release of these under trial
prisoners, but the trial process should be examined and reformed properly in a way it helps
these prisoners. From this, it can be concluded that the authorities of the criminal justice
system should implement the existing laws as well as guidelines that are issued by the
Judiciary from time to time for the protection of the under trial prisoners.

It is fairly known to everyone who is well versed with the criminal system of our country how
the life of an under-trial prisoner is. Many times, even without being convicted for the alleged
offence during the pendency of the trial the prisoners live crucial years of their life in jail and
the more devastating moment is when they are acquitted by the court of law after years of
jail. The under-trial prisoners are the most affected people in the criminal justice system as
they have to live life just like the convicted prisoners which causes them big mental agony
and emotional distress.

There must be a speedy trial of the criminal cases not only in our statutes but their application
must be held fairly in the real world. On the other hand, the conditions and facilities of the
prisons should be improved in a good manner and the under-trial prisoners should be kept in
different jails and not with the convicted prisoners.

Under-trials form the majority of the prison population in India and lead to overcrowding.
Various amendments have been made to the statutory provisions, to curb unnecessary arrests
and allow for release on bail/personal bonds. Several judgements have also upheld the right
of Under-trials to speedy trial, legal aid etc. However, the Under-trial population continues to
increase unhindered. The reason for this mismatch between the legal position and the actual
state of affairs, is the poor implementation of laws and judicial decisions made in this regard,
by police authorities, lower judiciary and prison administration. Thus, in addition to
introducing new ideas and measures, we need to focus on effectively implementing the
existing legal framework, to ameliorate the state of Under-trial prisoners in India.
REFERENCES
1. https://www.lexico.com/definition/Under-trial
2. “Human Rights in the Administration of Justice: A Manual on Human Rights for
Judges, Prosecutors and
Lawyers.” https://www.ohchr.org/documents/publications/training9chapter5en.pdf.
3. Prison Statistics India, NCRB (2019). https://ncrb.gov.in/sites/default/files/Executive-
Summary-2019.pdf.
4. https://www.prisonlegalnews.org/news/.
5. Aparna & Keerthana, Bail and Incarceration: The State of Under trial Prisoners
in India (2017).
6. 1979 SCR (3) 532
7. Motiram & Ors. v. State of Madhya Pradesh AIR 1978 SC 1594.
8. https://www.indiatoday.in/india/story/lajpat-nagar-blast-case-3-kashmiri-men-found-
innocent-after-23-years-in-captivity-1573692-2019-07-26.
9. Moti Ram and Ors. V. State of Madhya Pradesh AIR 1978 SC 1594
10. No person can be detained by the police in a bail able offence if s/he is ready
to furnish bail. See section 436 Cr.P.C
11. See Article 22 of the Constitution of India and Sec 167 Cr.P.C.
12. Section 436, 436A, and 437 Cr.P.C. read with the Supreme Court judgments like the
one in State of Rajasthan vs. Balchand AIR 1977 SC 2477 where it was held that
bail and not jail, should be the basic rule.
13. State of Rajasthan vs. Balchand AIR 1977 SC 2477 where it was held the “basic
rule may perhaps be tersely put as bail, not jail, except where there are
circumstances suggestive of fleeing from justice or thwarting the course of justice or
creating other troubles in the shape of repeating offences or intimidating witnesses
and the like, by the petitioner”. Also see Gudikanti Narasimhulu and Ors. v. Public
Prosecutor, High Court of Andhra Pradesh AIR 1978 SC 429.
14. Report of the Legal Aid Committee appointed by the Government of Gujarat 1971
(headed by Justice P.N. Bhagwati (p. 185).
15. Ibid.
16. See for example, State of Rajasthan vs. Balchand AIR 1977 SC 2477; Gudikanti
Narasimhulu and Ors. v. Public Prosecutor, High Court of Andhra Pradesh AIR
1978 SC 429; Moti Ram and Ors. V. State of Madhya Pradesh AIR 1978 SC 1594;
 Hussainara Khatoon and Ors v. Home Secretary, Bihar, Patna AIR 1979 SC 1360;
Supreme Court Legal Aid Committee v. Union of India and Ors 1994(3) Crimes
644(SC); Common Cause, A Registered Society Through Its Director v. Union of
India and Others (1996) 4 SCC 33.
17. 72nd law commission report 1.9 para
18. Madhurima on Under-trial prisoners and the criminal justice system, para 14
19. Prisons in India: An overview of reforms and current situation, pg 8
20. Access to Justice for Under-trial Prisoners: Problems and Solutions, by Shree Kumar
21. Mentally ill prisoners constituted 0.1% of the total prison population for the
year ending in 2000. Source: Prison Statistics 2000 at page 21.
22. Quoted in Preface of Report of the All India Committee on Jail Reforms Vol. I [1980-
83], Ministry of Home Affairs, Government of India at page vi. This reported shall
hereafter be referred to as the Mulla Committee report after the name of its
Chairperson – Mr. Justice A.N. Mulla
23. Access to Justice for Under-trial Prisoners: Problems and Solutions, by Shree
Kumar, in Pg. 2
24. By Justice Brennan cited in Hussainara Khatton v. State of Bihar, 1979 AIR
1369, 1979 SCR (3) 532
25. By Justice Blackmum cited in Hussainara Khatton v. State of Bihar, 1979 AIR
1369, 1979 SCR (3) 532
26. Hussainara Khatoon v. State of Bihar,1979 AIR 1369, 1979 SCR (3)
532 27. 1978 AIR 597
28. 1980 AIR 1579, 1980 SCR (2) 557
29. 1979 SCR (3) 532
30. Niranjan Sahoo and Vivek Jain, Justice System in Crisis: The Case of India’s Under-
Trial Prisoners (2015), https://www.orfonline.org/wp-
content/uploads/2015/08/IssueBrief_103.pdf