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The Human Right Of Under Trail Prisoners

The purpose of criminal justice system in any country is to protect not only the rights of the victims but also the convicts, prisoners and undertrials. They cannot be bared of their fundamental and human rights. Undertrial prisoners are those people who are facing trial in any court and during such trial are kept in judicial custody in prison. In simple terms, undertrial prisoner is one who has been arrested for some crime who is waiting to appear before the magistrate.

Such person is accused and his or her guilt has not been proved, hence he cannot be called a convict. According to 78th Report of the Law Commission of India (1979), �Undertrial is a person who is in a judicial custody or remand during investigation. An undertrial prisoner is the one who has been detained in prison during the period of investigation, inquiry or trial for the offence they are accused to have committed.�[1]

Undertrial prisoner�s population in India is estimated to be the 18th highest in the world and the third highest in Asia.[2] Undertrials such as Muslims, Dalits and Adivasis are in disproportionate number. About 53% of undertrial prisoners are from these communities, which make up 39% share of the population of India. Around 29% of undertrial prisoners are not formally literate, while 42% had not completed their secondary education.[3]

A huge majority of undertrial prisoners are downtrodden and poor who are either unable to furnish the bonds for release or are not aware about the judicial remedy to seek bail. All the persons detained in prison have a right to trial within a reasonable time.

Prolonged detention and delay in trial of cases not only violates the right to liberty guaranteed to every citizen, but also amounts to denial of human rights of the undertrials. Long detention may adversely impact the lives of the undertrial prisoners. The overuse of undertrial detention effectively ends up in punishing the people before they are convicted, and makes a mockery of their right to be presumed innocent until proven guilty. This can often increase the risk of ill-treatment and torture inside the prisons.

An undertrial may be warranted in prison on the following grounds:

  1. in case of a very grave offence;
  2. if the person arrested is likely to interfere with witnesses or impede the course of justice;
  3. if the person arrested is likely to commit the same or any other offence; 4) if he may fail to appear for trial.
The criminal justice system in our country is based on two principles i.e. any person arrested is presumed to be innocent unless proven guilty and secondly the duty of the state and the court to see that justice is done to the people and the victim. To achieve these principles the process of investigation and trial should be completed without any delay. But they are not being achieved and undertrials keep on languishing in jail for years.

The poor generally finds it difficult to furnish bail even without sureties because the amount fixed by the court is so excessive. Hence in many cases the poor are unable to satisfy the police or the court about their solvency for the amount of the bail and where the bail is with sureties as is in most cases, it becomes an impossible task for the poor to find persons sufficiently solvent to stand as sureties.[4]

Because of all this they have to remain in jail until the time the court their case come up for trial before the court leading to grave consequences such as:
  • In spite of the fact that assumed innocent, they are exposed to mental and actual privations of jail life,
  • Pre-trial detention disrupts their family life and in most cases is economically disastrous for the family,
  • It prevents them from contributing to the preparation of their defence.

Problems Faced By Undertrials In India

Undertrials forms the major part of the prison administration in Indian jails leading to overcrowding. Overcrowding in prisons has to be brought down so as to reduce the population of undertrial prisoners. This cannot happen without the court and the police working together. Such overcrowding has created many problems for the undertrial prisoners such as:
  • There is no separate prison for undertrials, so with hardened criminals and in the absence of any scientific classification methods of separating them from others, there is a chance of first time and circumstantial offenders to turn into criminals. The Model Prison Manual states that no convicted prisoner shall be kept in the same area in which undertrial prisoners are kept, or be allowed to have contact with undertrial prisoners.[5]
  • Prisons are often a dangerous place for the first-time offenders who are subjected to group violence and mishandling by the police. An example of worst form of cruel and inhuman treatment to the prisoners was Bhagalpur Blinding Case[6] which insulted the human values as well as the Article 2. In this Apex Court dealt with the blinding of undertrial prisoners by the police by small hole in their eyeballs with needle and pouring acid in them.
  • Due to overcrowding in the prison and shortage of adequate space to lodge prisoners, most of the prisons face problems to keep them in safe and healthy conditions. Most of the prisoners including the undertrials come from socio-economic and disadvantaged sections of the society where disease, malnutrition and absence of medical services are common. When such people are cramped in with each other in unhealthy conditions, infectious and communicable diseases spread easily among them[7]. A sample study conducted by the National Human Rights Commission of India in early 1998 which showed 76% of deaths in Indian prisons were due to the scourge of Tuberculosis.
  • Mentally ill prisoners which constitute another percentage of population in prison are largely forgotten one. They are ignored by both the outside world and the inside. But because of their nature of illness and social attitudes prevailing in the country, they form the most hapless victims of human rights violations.[8]
  • Undertrial prisoners also face homosexual abuse as prisons are places where same-sex people are lodged. Being removed from their natural partners, forces them to look for alternative ways to satisfy their sexual urge. They often target the young and feeble prisoners. Resistance showed by them leads to aggravated violence on them. Sometimes they are subjected to massive homosexual gang rapes. This leads to trauma forcing them to commit suicide.
  • Due to long absence of the main bread winner, family of the under-trial prisoner many a time is forced into destitution and also faces social stigmatization. In many cases this may result into children turning towards delinquency and exploitation by others.

Human Rights Of Undertrial Prisoners

The treatment of under trials in prisons is not satisfactory as seen above. The human rights of these prisoners are violated. These are basic and inalienable rights available to every person by virtue of being born as a human. These rights are said to be natural and basic rights of all human being without any discrimination on the basis of sex, caste, ethnicity, language, etc. Human rights of undertrial prisoners have been analysed in detail.

Every person so arrested has a right to be produced before the magistrate within 24 hours of his arrest. This right flows from Article 22(2) of the Constitution of India and Section 57 of CrPC. Such a safeguard is provided with an intention to protect the person under custody from the likelihood of ill- treatment and torture in custody by the police. This right is important as it ensures that police cannot arbitrarily keep the person in custody.

The Supreme Court in the case of Sharifbai v. Abdul Razak[9] held that if the accused person in not produced before the magistrate within the stipulated time, then such detention will 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[10]. He shall also be informed about his legal right to bail.[11] Such right gives the arrested person an opportunity to apply for bail and to prepare any other defence in time.

In State of Rajasthan V. Balchand alias Baliay[12], the Supreme Court has 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.

Further Article 22(1) of the Constitution of India provides the arrested person the right to consult and to be defended by a legal practitioner of his choice. But most of the undertrials are poor who are not able to engage a lawyer or to furnish the bonds for release. Hence Article 39A of the Constitution of India provides for the free legal aid. This article ensures that access to justice is not denied to anyone because of his economic or other disabilities.

This article enacts a mandate that the state shall provide free legal aid, by suitable legislation or schemes.
The Supreme Court held in M.H. Hoskot v. State of Maharashtra[13] and Hussainara Khatoon v. State of Bihar[14] that a procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would have to go through the trial without legal assistance cannot be regarded as reasonable, fair and just under Article 21 of the Constitution of India. It also said that a prisoner who is seeing his liberation through the court process should have legal services made available to him.[15]

The court also directed that when the undertrial prisoners were produced before the magistrate on the next remand date, the state government should provide them with a lawyer at its own cost for the purpose of making an application for bail and opposing remand.

Our criminal justice system is based on the principle that a person arrested is considered innocent unless proved guilty beyond reasonable doubt by the court. Hence an arrested person or an undertrial prisoner shall not be subjected to handcuffing.

In the Supreme Court in case of Prem Shankar Shukla v. Delhi Administration case[16] 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. Even where, in extreme circumstances, handcuffs become necessary, the escorting officer must record the reasons for doing so and show it to the presiding judge for his approval.

Role Of Judiciary And The Legislature

Time and again judiciary have tried to improve the plight of the undertrials by laying down various directives in its landmark judgments. In Sheela Barse V. State of Maharashtra,[17] the apex court dealt with the treatment of women prisoners in police lock ups. It issued various directions in order to improve the conditions of women prisoners in the lock ups and also provided adequate protection to the arrested persons and especially to women confined in the police lockups.

In first 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 and the security of the prison, then this would violate his basic human dignity which is impermissible under the constitution. The court also expressed it opinion that solitary confinement has degrading and dehumanizing effect on the prisoner which violates their right under Article 21 of the Constitution.

In 2005, parliament sought to address the issue of prolonged detention of undertrial prisoners by amending CrPC. Section 436A was inserted in the code which says that an undertrial prisoner can be released on a personal bond if he has served half of the maximum sentence of the offence for which he is charged. But this section will not apply in cases where the offence is punishable with death.

The court may order continued detention of such person for a longer period as mentioned under this section instead of personal bond with or without sureties. Also, such person shall not be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment as given for the said offence under the law. The court while computing the period of detention for granting bail under this section shall exclude the period of detention passed because of delay in proceedings caused by the accused.

In the same year i.e. 2005, a Public Interest Litigation was filed before the apex Court in the case of Bhim Singh v. Union of India case, which sought effective implementation of section 436A. In 2012, a set of directives was issued by the Ministry of Home Affairs in order to reduce overcrowding in prisons. This can be ensured by periodic monitoring conducted by the states to identify undertrial prisoners eligible for release under section 436A. [18]

Synopsis of Bhim Singh V. Union of India [19]
Facts of the case:
In an earlier hearing of the petition on 01.08.2014, the Court asked the Attorney General, Mr. Mukul Rohatgi, about the Central Government�s plan for fast tracking the criminal justice system. The Attorney General pursued three months� time to place a roadmap before the Court for fast-tracking criminal cases.

The Attorney General further informed the Supreme Court that more than 50% of prisoners are undertrials and many may have served the maximum sentence for the offences they have been charged with. Considering the gravity of injustice caused by prolonged detention of undertrials, the Court passed directions for the immediate implementation of Section 436A of CrPC to ensure that undertrial prisoners do not continue to be detained in prison beyond the maximum period provided under the said section of CrPC.

Issues Raised: An effective implementation of Section 436A and fast tracking of the criminal justice system is necessary. This is to ensure that no undertrial prisoners shall remain in prison beyond half of the maximum sentence prescribed for that offence.

Decision of the court: [20]
The Court passed the following directions by setting up a review mechanism for the purpose of effective implementation of Section 436A of the Code. The directions of the court will apply to all the States irrespective of existing or non-existing provisions of review committees in jail manuals, or absence of jail manuals. The concerned judicial officer has to submit a report of each sitting of the court to the Registrar General of the concerned High Court, who in turn will submit a report to the Secretary General of the Supreme Court.

Further in 2013, R.C. Lahoti, who was a former Chief Justice of India, wrote to the then Chief Justice Altamas Kabir, showing his concern over the inhuman condition of prisoners in 1382 prisons across the country. This letter was taken up by the apex Court as public interest litigation. The Court directed the authorities to obtain information pertaining to overcrowding in prisons and also the living conditions of prisoners.[21]

An interim order was passed in 2016 where the Court stated that no change has been seen in the conditions of prisoners even though Article 21 of the Constitution requires a life of dignity for all persons. They have to once again deal with the issues relating to the prison reforms.

In February 2017 the Union Minister for Law wrote to Chief Justices of all High Courts stating that all stakeholders have to take collective responsibility in order to ensure that institutional mechanisms for undertrial prisoners work effortlessly so that they cannot be denied access to justice. Hence in April 2017 three new programmes were launched to aim at extending legal aid to marginalized people. In May 2017, the Law Commission of India recommended that provisions on bail in the CrPC are to be amended so as to facilitate a reduction in the number of undertrial prisoners in prison.�[22]

Hence judiciary and the legislature both played an important role to improve the conditions of the undertrials.

Undertrial prisoners are those who have been accused of some crime and waiting to appear before the court. They cannot be called as a convict because their guilt has not been proved. A huge majority of undertrial prisoners are poor who are unable to furnish bail for their release. They are not made aware about their legal rights i.e. the right to free legal aid, the right to get the legal practitioner of their choice, the right to bail etc.

They live in a disturbing condition in jail, don�t have access to adequate medical care and are tortured and exploited. living for a long-time detention of the undertrials not only violates their right to liberty but also amounts to denial of human rights to these poor people who needs protection, care and consideration of law and criminal justice system. Even though government tried to solve this problem but yet not able to do it.

Generally poor finds our legal and judicial system oppressive and find themselves in a position of inequality with the non-poor. Not only this, they are kept with the hardened criminals being subjected to torture by their fellow inmates. There might also be a chance for them to turn into criminals. Moreover, the prison is overcrowded leading to various health problems and illness. Despite various enactments and directions by the court, there is no improvement in the treatment of undertrials.

The number of undertrials in prison can be reduced only by speeding up the trial, simplifying of the bail procedure and by periodic review of the cases of undertrials. Moreover, there should a separate prison for undertrial prisoners.

  1. Law Commission of India, 78th Report on Congestion of Under-Trial Prisoners In Jails, ( last Visited October 26,2020)
  2. International Centre for prison studies, Highest to lowest - pre-trial detainees / remand prisoners, Available at (Last Visited October 27, 2020)
  3. �Justice Under Trial - A Study of Pre-Trial Detention in India�, Amnesty International, 5(2017) Ibid.
  4. P.N. Bhagwati, �Human Rights in the Criminal Justice System�
  5. Ibid.
  6. Model Prison Manual (2003)
  7. Khatri & Ors. V. State of Bihar, AIR 1981 SC 928
  8. Dr. T. Giri and T.S.R. Praneetha, �Problems of Undertrials in India�, 2 IJLDAI 239
  9. Supra Note 5, pg. 244.
  10. AIR 161 Bom 42
  11. Article 22(1) of COI, See also Section 50(1) CrPc.
  12. Section 50(2) CrPC.
  13. AIR 1997 SC 2447
  14. AIR 1978 SC 1548
  15. AIR 1979 SC 1369
  16. P.N. Bhagwati, �Human Rights in the Criminal Justice System�, pg.310
  17. AIR 1980 SC 1535
  18. AIR 1983 SC 373
  19. Supra Note 2, pg. 7
  20. Madhurima Dhanuka, �Undertrial Prisoners and the Criminal Justice System�, 2 SCC 25-32 (2010)
  21. Madhurima Dhanuka, �Undertrial Prisoners and the Criminal Justice System�, 2 SCC 25-32 (2010)
  22. Re Inhuman 1382 Prisons Case, WPC 406 of 2013
  23. Supra Note 2.
Articles Referred:
  • Justice Under Trial: A Study of Pre-Trial Detention in India�, Amnesty International, 5 (2017)
  • P.N. Bhagwati, �Human Rights in the Criminal Justice System�
  • Dr. T. Giri and T.S.R. Praneetha, �Problems of Undertrials in India�, 2 IJLDAI 239  Model Prison Manual (2003)
Cases Referred:
  • Khatri & Ors. V. State of Bihar, AIR 1981 SC 928
  • Sharifbai v. Abdul Razak, AIR 161 Bom 42
  • State of Rajasthan versus Balchand alias Baliay, AIR 1997 SC 2447
  • M.H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548
  • Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369
  • Prem Shankar Shukla V. Delhi Administration, AIR 1980 SC 1535
  • Sheela Barse V. State of Maharashtra, AIR 1983 SC 373
  • Bhim Singh v. Union of India
  • Re � Inhuman 1382 Prisons case, WPC 406 of 2013

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