Under Trial Prisoners (UTPs), who account for approximately 75-80% of India's prison population, face prolonged periods of detention largely due to systemic delays within the judicial framework and stringent bail conditions. These individuals frequently encounter significant challenges in securing bail and parole resulting in dire living environments that exacerbate overcrowding, violate human rights, and undermine their mental and physical health.

Despite the existence of legal instruments like the Bharatiya Nagarik Suraksha Sanhita, 2023, which offer some degree of protection, UTPs often find themselves ensnared in enduring cycles of incarceration. To effectively tackle these pressing issues, reforms in parole, bail, and expedited judicial processes are imperative. Notably, UTPs are not afforded regular parole opportunities, even though convicts benefit from such provisions.

However, the adoption of technological advancements, such as electronic monitoring, offers promising alternatives for the safe temporary release of UTPs on parole. Establishing explicit guidelines regarding eligibility, conditions and effective supervision for the release of UTPs on remand could help protect human rights while ensuring public safety. This approach not only facilitates their reintegration into society but also alleviates the strain on India's correctional facilities due to overcrowding.

Introduction:
Under Trial Prisoners (UTPs) are individuals who are facing criminal charges and are awaiting their trial without having been convicted. These individuals are held in judicial custody, with some of them potentially caught in falsely fabricated cases, often because they cannot secure bail. This inability to obtain bail can result from strict bail conditions, such as those found in NDPS and POCSO cases.

Even when bail is granted, some may not be able to meet the stipulations required for their release. For example, many impoverished individuals become ensnared in this system; their lack of financial resources prevents them from hiring competent legal representation or paying required fines, which perpetuates a devastating cycle of poverty and incarceration.

Unconvicted individuals make up an astonishing 75-80% of the nation's prison population, significantly contributing to the concerning problem of overcrowding. The sluggish nature of the judicial process, coupled with stringent bail requirements and a shortage of judges in certain courts, frequently causes these individuals to remain in detention for months or even years. As a result, many end up serving longer in custody than the sentences they might face for the accusations against them. This extended period of uncertainty often fosters feelings of hopelessness and despair among unconvicted individuals.


The implications of such extended detention are profound, raising critical concerns regarding human rights, legal fairness, and overall health. Many UTPs experience conditions that surpass the hardships faced by convicted criminals, leading to issues such as deteriorating mental and physical health. For example, overcrowded cells may lack adequate sanitation, fresh air, and nutrition, exacerbating the distress these individuals face, often leaving them mentally scarred and physically weakened long before their actual trial takes place.


(The image above represents the pitiable condition of an overcrowded prison)

No Regular Parole for UTPs:
In India, Undertrial Prisoners (UTPs) typically do not qualify for parole, which is designated for convicted offenders eligible for temporary release under specific conditions. Parole refers to a conditional release after conviction, while UTPs depend on judicial discretion for bail, influenced by factors like the nature of the offence and duration of detention. In rare cases, courts may grant temporary releases for humanitarian reasons, although this is not formally classified as "parole."

Such releases might be permitted during emergencies, such as medical needs or funerals, relying on judicial discretion rather than established parole procedures. The Supreme Court and High Courts have intervened to uphold UTPs' fundamental rights in emergencies, and prison authorities may also facilitate releases under police escort.

State/UT-Wise Data on Undertrial Prisoners Confined for Over a Year in Indian Jails as of 31st December 2022:

SL.	State/UT	More Than 5 Years	3 to 5 Years	2 to 3 Years	1 to 2 Years
1	Andhra Pradesh	1	53	58	280
2	Arunachal Pradesh	4	10	9	14
3	Assam	45	137	128	1209
4	Bihar	402	1481	2818	6393
5	Chhattisgarh	66	406	1137	2196
6	Goa	16	0	71	194
7	Gujarat	447	822	1032	1885
8	Haryana	53	786	1543	3700
9	Himachal Pradesh	48	243	261	444
10	Jharkhand	315	845	1044	2181
11	Karnataka	225	677	863	2194
12	Kerala	7	38	92	391
13	Madhya Pradesh	211	1675	2105	4274
14	Maharashtra	1850	2261	2822	5759
15	Manipur	22	26	14	48
16	Meghalaya	19	77	66	152
17	Mizoram	1	3	22	42
18	Nagaland	15	17	25	28
19	Odisha	480	1167	1166	2200
20	Punjab	119	716	1967	4398
21	Rajasthan	453	1621	1974	3005
22	Sikkim	2	18	31	56
23	Tamil Nadu	27	81	264	613
24	Telangana	9	24	44	272
25	Tripura	0	7	13	39
26	Uttar Pradesh	4540	8760	9819	13891
27	Uttarakhand	28	185	383	748
28	West Bengal	1379	2187	2305	3464
29	Andaman & Nicobar Islands	1	17	1	13
30	Chandigarh	0	46	54	98
31	DNH & Daman & Diu	2	17	19	45
32	Delhi	407	982	1284	2426
33	Jammu & Kashmir	253	480	543	823
34	Ladakh	1	4	1	3
35	Lakshadweep	0	0	0	0
36	Puducherry	0	0	2	24
	Total	11,448	25,869	33,980	63,502

(Source of above Data: Undertrial Prisoners, Ministry of Home Affairs, Posted on 06 February, 2024 by PIB Delhi, https://pib.gov.in/PressReleaseIframePage.aspx?PRID=2003162)

The above statistics on Indian prisoners held for more than a year show significant regional disparities and reveal persistent problems in the country's criminal justice system. Uttar Pradesh, Maharashtra and Bihar top the list with alarmingly high numbers, especially in the 1-2 years and 3-5 years categories, pointing to systemic delays in the judicial process.

Specifically, Uttar Pradesh accounts for 13,891 Undertrial Prisoners (UTPs) incarcerated over a period of 1–2 years, almost double the number of Maharashtra (5,759) and Bihar (6,393). The issue of long-term incarceration is concerning, with Uttar Pradesh and Maharashtra reporting the highest numbers of inmates held for over five years, totalling 4,540 and 1,850 respectively. These statistics reveal ineffective judicial processes, prison overcrowding and limited bail enforcement, all of which undermine prisoners' due process rights and perpetuate injustices.

In addition, states such as Gujarat, Punjab and West Bengal also report significant numbers of UTPs, suggesting that these delays are not isolated to specific regions but reflect a broader national trend. In contrast, states with smaller populations such as Goa, Sikkim and the Union Territories show significantly lower numbers, which may indicate either more efficient case processing or a reduction in the number of inmates.

However, the presence of several long-standing deficiencies in these areas raises concerns about case management and the availability of timely justice. These data underscore the urgent need for reforms to increase case processing efficiency, improve access to legal aid and reduce unnecessary pre-trial detention, as long-term detention exacerbates overcrowding and human rights violations, further reinforcing the principle that justice delayed is justice denied.

Views of Critics of Grant of Parole to UTPs:
Regular parole to the convicts can be granted under various circumstances, including: the serious illness of a family member; critical family situations arising from an accident or the death of a family member; and the marriage of any family member of the convict. Additionally, it may be provided for the delivery of the convict's child if there is no other family member available to care for the spouse at home and in cases where the family's life or property suffers significant damage, particularly due to natural disasters.

Furthermore, regular parole can also be granted for the purpose of maintaining family and social connections, and to facilitate the convict's efforts in filing a special leave petition before the Court in response to a judgment issued by the High Court that either convicts or upholds the conviction.

Critics often argue that granting parole to Undertrial Prisoners (UTPs) might pose a risk to public safety and could inadvertently incentivize individuals to flee the legal system. These concerns, while valid, can be effectively alleviated through the implementation of a well-designed parole framework. A comprehensive approach can include various oversight measures such as mandatory scheduled check-ins, electronic monitoring systems, and required community service. These mechanisms will help ensure that UTPs remain compliant with the terms of their parole. Furthermore, it is crucial that parole considerations are customized for each individual, taking into account their specific circumstances, including the nature and severity of the alleged offence, their history of criminal behaviour, conduct while incarcerated, and their assessed risk of reoffending and absconsion.

Another significant apprehension revolves around the potential for inequitable treatment in the granting of parole, which might favour certain demographics while disadvantaging others. To counter this concern, establishing clear and transparent guidelines for parole eligibility and conditions is essential. This would involve creating a standardized set of criteria that can be uniformly applied to all cases, thereby minimizing subjective biases. Additionally, ensuring that every parole decision is reviewed by senior officials and subjected to judicial oversight is vital. Such scrutiny acts as a safeguard, fostering a sense of accountability within the process that is necessary for public trust.

Ultimately, this structured approach to managing parole not only addresses the fears surrounding public safety but also enhances the integrity of the legal system. By prioritizing fairness and transparency, we can work to eliminate discrimination based on factors such as socioeconomic status, religious beliefs, corrupt practices, or other personal attributes. Ensuring equitable treatment within the parole process is not merely an ethical obligation but a foundational element of fostering trust in the justice system. This commitment to fairness creates a more constructive environment for all individuals involved, encouraging rehabilitation and reducing the risk of recidivism while ultimately benefitting society as a whole.

Views in Favour of Grant of Parole to UTPs:
On December 31, 2022, the incarcerated population in India totalled 573,220, encompassing those waiting for trial. This figure represents a 3.5% increase from the previous year, 2021. The year 2022 saw Indian jails operating at an alarming occupancy rate of 131.4%, indicating overcrowding and straining the correctional system. Among those imprisoned a significant 76% were undertrial prisoners, shedding light on the challenges faced by the judicial process in managing individuals who have yet to be convicted. These statistics underscore the urgent need for reforms within the Indian penal system to address overcrowding and improve conditions.

Restricting parole eligibility solely to convicted individuals while excluding those classified as UTP has caused significant frustration among prisoners. Many have been incarcerated for extended periods because of delays in judicial investigations and trials. This paper advocates for granting parole rights to those in custody, emphasizing that any modifications must be supported by legal, humanitarian, and practical considerations.

Indian Constitution guarantees the right to a fair trial and safeguards personal liberty through Articles 21 and 22. Imposing lengthy imprisonment for unproved crime without the opportunity for parole infringes upon these essential rights. The fundamental tenet of "innocent until proven guilty" should be the foundation of every legal system. Refusing parole to UTPs undermines this principle and subjects unconvicted individuals to potentially harsher conditions than those faced by convicted criminals.

Furthermore, the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita 2023, the Prison Act of 1894, or any relevant State Prison or Correctional Services Act or Regulations do not explicitly prohibit the release of prisoners awaiting trial. The lack of legal barriers implies that granting parole to the UTPs could be achieved with limited legislative action. Such a measure would align with India's obligations under international human rights agreements, including the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, which advocate for the equitable treatment of all persons regardless of their legal circumstances.

Undertrial prisoners pose significant challenges for India's legal framework, contributing to issues of overcrowding, violations of human rights, prison violence, and socio-economic hardships. While various reforms have been suggested, there is a pressing need for immediate and comprehensive actions. Addressing the systemic delays in the trial process, ensuring equitable access to parole and bail, and enacting judicial reforms are critical for alleviating the difficulties faced by UTPs and achieving justice for all.

Literature Review:
Individuals detained in judicial custody awaiting a court hearing for alleged crimes are referred to as Undertrial Prisoners (UTPs). They may remain incarcerated for extended durations without a conviction due to persistent delays within the legal system. This group constitutes a significant segment of the prison population, particularly in India, where they account for roughly 75-80% of all inmates (National Crime Records Bureau, 2022). The extended detention of UTPs raises serious human rights issues and highlights deficiencies in the judicial system.

The main legal frameworks addressing rights against unfair treatment consist of the Constitution of India, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), and the Bharatiya Sakshya Adhiniyam, 2023. According to Article 21 of the Constitution of India, no person shall be deprived of their liberty without due process. Nonetheless, despite this protection, the slow pace of the judicial system frequently results in persistent concerns regarding unfair business practices (Suresh, 2021).

Numerous factors contribute to the overrepresentation of UTPs within the detention system. These include an overwhelming backlog of cases, insufficient numbers of judges, delayed investigations, and various bureaucratic inefficiencies (Bhatia, 2020). Moreover, heavy reliance on police remands and strict bail conditions for specific offences contribute to the extended detention of individuals, frequently without justifiable reasons.

A major consequence of the high number of UTPs is jail overcrowding. In numerous Indian prisons, the population exceeds their intended capacity, with UTPs comprising the majority. This overcrowding results in inadequate living conditions and heightens health risks, particularly highlighted by the challenges posed during the COVID-19 pandemic (Agrawal, 2022). Research indicates that better management of UTPs could help alleviate the issue of overcrowding.

The imprisonment of UTPs without trial has profound socio-economic repercussions. Many of these individuals come from marginalized backgrounds and are at risk of losing their jobs and family support during their time in custody. This disruption can further alienate them socially and lead to long-lasting economic insecurities (Singh, 2019). The financial strain on their families due to their detention is also notable.

Studies in psychology highlight the considerable emotional distress experienced by UTPs while they are detained. The uncertainty regarding their legal situation, combined with substandard prison conditions, leads to heightened levels of stress, anxiety, and depression among UTPs. Studies indicate that the prison environment and the trauma from delayed justice impact the mental health of UTPs even more severely than convicted prisoners (Kumar, 2021).

Various reforms have been proposed to tackle the difficulties encountered by UTPs. Guidelines have been established by the Supreme Court of India to expedite the resolution of cases involving UTPs. Fast-track courts, designed to address the backlog of cases, represent another significant reform. However, these initiatives have not yet yielded substantial improvements due to issues with implementation (Sharma, 2020).

Reforming bail practices is crucial for mitigating the UTP dilemma. The frequent reliance on custodial remand and the denial of bail for minor offences contribute to the rising numbers of UTPs. Legal experts argue for more lenient application of bail provisions, particularly for non-violent offenders and those who do not pose a flight risk (Mehra, 2021). The Supreme Court's guidance aimed at avoiding unwarranted arrests in minor offences (as seen with the introduction of subsection 35(7) in the recently established Bharatiya Nagarik Suraksha Sanhita, 2023, which replaces the Code of Criminal Procedure, 1973), marks a significant advancement in this field.

For example, there are contrasting methods employed by the United States and the United Kingdom when it comes to the treatment of detainees. Although they also face challenges related to delays and backlogs, they implement strict time limits on pre-trial detention. These examples underscore the necessity for India to consider similar international best practices to effectively reduce the UTP population (Ali, 2020). Proper application of such practices can lead to a more equitable judicial system.

Impact of Non-release of Under Trial Prisoners (UTPs) on Parole:

1. Legal and Human Rights Considerations: The slow legal proceedings, coupled with overwhelmed courts facing an increasing backlog of cases, lead to prolonged trials and arbitrary detention, contributing significantly to the frequent denial of release for UTPs. The rights of these individuals and the overall integrity of the justice system are compromised when UTPs—who are presumed innocent until proven guilty—find themselves imprisoned without a conviction. Though, under Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), UTPs who have completed half of their maximum sentence are eligible for bail; however, many are unable to benefit from this provision because of bureaucratic delays and insufficient legal guidance.
    
2. Impact on Mental and Physical Well-being: The prolonged detention of UTPs without the hope of parole takes a significant toll on their mental and physical health. Overcrowded and often violent prison environments contribute to high levels of anxiety and depression, especially affecting those from economically disadvantaged backgrounds who already face limitations in accessing mental health resources. The stigma surrounding being an undertrial can also result in increased social isolation, compounding feelings of despair. Furthermore, the lack of space and resources leads to poor nutrition and insufficient exercise, putting UTPs at risk of various health issues, including infectious diseases like tuberculosis and hepatitis, all of which flourish in overcrowded, unsanitary conditions.
    
3. Overcrowding Crisis in Prisons: The severe overcrowding in India's prison system, which is currently functioning at 130-150% of its intended capacity, is largely attributed to the denial of release for UTPs. A considerable number of UTPs cannot secure their release, which directly exacerbates this congestion. When trial is delayed, these individuals may end up serving much longer sentences than if they had been convicted, further contributing to the backlog and worsening the issue of overcrowded facilities.
   
   
    
4. Economic Strain on the State: The continued imprisonment of UTPs exerts a considerable financial burden on the state, as it must cover the costs of food, healthcare, and security for these individuals. With the UTP population rising, the financial implications of operating overcrowded prisons divert much-needed resources from critical areas such as education and healthcare. Estimates suggest that maintaining a single prisoner can cost the state between INR 30,000 to 50,000 annually. Furthermore, many UTPs are detained for minor offences that could be resolved through alternative measures like community service, conciliation, or bail. Their incarceration not only imposes costs on the state but also denies them the opportunity to contribute economically, worsening financial challenges for their families and communities.
   The significant financial burden of handling overcrowded jails greatly influences the functioning of the criminal justice system. As a result, judges, prosecutors, and defence attorneys often experience a sense of being overwhelmed, resulting in delays in court proceedings. The decision to deny parole to undertrial prisoners (UTPs) worsens the situation by keeping inmate populations high, thus impairing the system's operational efficiency.
    
5. Societal Consequences and Recidivism: Long-term detention of UTPs has serious societal implications. Extended periods in prison expose them to violence, gang affiliations, and substance abuse, hindering their successful reintegration into society upon release. These harsh conditions can leave lasting scars, making it difficult for them to transition back to normal life.
    
6. Higher Rates of Recidivism: Research has shown that longer incarceration, particularly for minor offences, correlates with higher recidivism rates. UTPs denied parole are more likely to reoffend due to the negative influences experienced in prison and the challenges they face in finding stable employment and housing after release.

(The line graph presented above illustrates the trend of undertrial prisoners in India from 2015 to 2022. It depicts a consistent rise in the number of undertrial prisoners over these years, highlighting the issue of overcrowding in jails.)

International Perspective:
When analysing the decisions of international courts regarding individuals awaiting trial, significant cases highlight the worldwide challenges linked to the detention of individuals who have not yet been convicted. The importance of considering pre-trial detention as a measure of last resort has been emphasized by the International Criminal Tribunal for the former Yugoslavia (ICTY), arguing that it should be limited to the necessary time in accordance with the principles of international human rights law.

It has been firmly established by the European Court of Human Rights (ECtHR) that long periods of pre-trial detention violate Article 5 of the European Convention on Human Rights, a provision that guarantees the right to a fair trial. In Kalashnikov v. Russia, the court concluded that unreasonable pre-trial detention in harsh conditions constituted inhuman treatment.

In a related context, the Supreme Court of India has addressed the issue of prolonged imprisonment while judicial processes are underway, promoting bail as a preferable option to custody and emphasizing the need for prompt justice. Similarly, the International Court of Justice has condemned arbitrary detention in cases such as Ahmadou Sadio Diallo v. Democratic Republic of the Congo, underscoring the significance of adhering to due process.

Additionally, the African Court on Human and Peoples' Rights has investigated matters related to pre-trial detention, especially in the context of political prisoners. It determined that detaining individuals arbitrarily without conducting a timely trial violates the provisions of the African Charter. Similarly, the Inter-American Court of Human Rights has issued rulings against detention without trial, as seen in the case of Loayza Tamayo v. Peru, thereby reinforcing the fundamental rights to personal liberty and judicial protection. Collectively, these rulings reflect an increasing global consensus on the pressing need for reforms that guarantee equitable treatment of detainees within the judicial system and encourage alternatives to incarceration.

Court Judgments on Parole:
In the case of State of Bihar v. Hussainara Khatoon (1979), a troubling number of undertrial prisoners (UTPs) were found to be held without trial, as highlighted by this important prison reform case. The Supreme Court underscored the necessity of expediting trials and asserted that prolonged detention without trial infringes upon Article 21, necessitating relief for those held under such circumstances.

The court underlined the critical need for prison reforms to protect human dignity and guarantee justice in its seminal decision in Sunil Batra v. Delhi Administration (1980). It further underlined that prisoners have certain legal rights regardless of whether they have been convicted or not. The court reaffirmed the demand for substantial reforms to the prison system and addressed issues of discrimination by stating that holding someone in custody without sufficient reason is a violation of their right to life and liberty as guaranteed by Article 21.

In the 2017 ruling of Asfaq v. State of Rajasthan, the Supreme Court determined that factors related to a prisoner's humanitarian concerns, including health issues and family hardships, should be considered when making decisions about parole. The Court stressed that denials of parole must have a legitimate basis and cannot be issued capriciously.

In the case of Babulal Das v. The State of West Bengal, AIR 1975 SC 606, the Supreme Court ruled that individuals who are detained without trial must be afforded the opportunity for redress through the reasonable availability of parole. The court recognized that allowing temporary release under controlled conditions could benefit society when done judiciously. Similarly, in Inder Singh v. The State (Delhi Administration), the court underscored the importance of adopting a lenient approach to parole even in instances involving serious offences.

Proposed Solutions:
Addressing the challenges associated with the UTPs necessitates the implementation of substantial reforms that target the root causes of the issues at hand. A multifaceted approach is crucial for creating lasting change in the lives of UTPs and the wider community. This involves a commitment to a comprehensive overhaul of existing systems to ensure that UTPs can navigate their legal and social environments more effectively. By recognizing the complexities surrounding their situations, we can formulate strategies that address those complexities head-on.

One of the critical areas that require reform is the parole system. Enhancing this system is essential to guarantee that UTPs receive timely access to parole opportunities. Streamlining this process would not only help reduce unnecessary detentions but also facilitate a smoother transition for UTPs as they reintegrate into society. By ensuring that eligible individuals have prompt access to parole, we can alleviate some of the burdens of overcrowded facilities and help individuals move toward more constructive, stable futures.

In addition to reforming the parole system, expediting trial processes is imperative in addressing the backlog that often leaves UTPs in limbo. This can be achieved by allocating more judicial resources to manage cases effectively, thereby minimizing delays that can lead to prolonged and stressful detentions. By implementing measures that allow for quicker hearings and resolutions, the judicial system can not only provide justice more swiftly but also restore dignity to UTPs who might otherwise feel ignored or marginalized.

Improving prison conditions is vital for the well-being of UTPs who are currently incarcerated. Ensuring that they are housed in humane environments with access to necessary resources can significantly affect their mental health and overall rehabilitation. Concurrently, raising legal awareness among UTPs about their rights will empower them to advocate for themselves while imprisoned and after their release. Together, these changes can contribute to reducing overcrowding within facilities and promote successful reintegration into society, ultimately fostering a more just and equitable system for all.

It could be advantageous to explore the possibility of amending the laws to permit regular parole for undertrial prisoners, although such changes would necessitate thorough deliberation. To begin with, it might be important to reassess the conventional understanding of parole, which typically pertains to those who have been convicted. A crucial step in facilitating this transformation may involve revising legal structures like the Prisons Act and the Bharatiya Nagarik Suraksha Sanhita, 2023. Creating explicit guidelines regarding eligibility, conditions, and judicial oversight could aid in safeguarding human rights while ensuring public safety.

Additionally, making these adjustments with care would be prudent, as it is essential to strike a balance between individual rights and community security, thereby ensuring that reforms effectively tackle overcrowding and violation of human rights without undermining the integrity of the justice system or increasing crime rates.

Conclusion:
The failure to release Undertrial Prisoners (UTPs) on parole significantly contributes to overcrowding in prisons, resulting in various related challenges such as human rights abuses, deteriorating mental and physical health, prison violence, and a substantial financial strain on the state. To tackle these issues, reforms in the parole system, acceleration of the judicial process, and the exploration of alternative sentencing methods are critical. By implementing these changes, the criminal justice system can help reduce prison overcrowding while ensuring that UTPs are treated justly and humanely as they await trial.

Refusing to release an UTP on parole without good cause is a breach of Article 21's Right to Life and Liberty. This emphasizes how critical it is to reduce unjust practices and reform prison administration. The implementation of parole regulations for Indian Undertrial Prisoners (UTPs) is a necessary and legal change that is in line with humanitarian ideals, constitutional rights, and pragmatic requirements. This approach could help alleviate chronic overcrowding in prisons, reduce unnecessary suffering for many prisoners and their families, and make court processes more efficient, all at a fraction of the cost associated with other proposed reforms. By establishing a fair system for judicial parole, India can uphold the principles of justice and fundamental rights.

References:

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• Mehra, S. (2021). Bail reforms in India: A case for liberalisation. Indian Journal of Criminology, 28(3), 220-240.
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• IJFMR.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565