Prisons around the world today, have become more a means of social control than a form of reformative punishment. With majority of its population being under trial, Indian prisons are headed towards the same direction. The country has recorded the third highest under trial prisoners in Asia, with around 2.8 lakh citizens, languishing behind bars during their trials or awaiting trial, without being convicted.


The practice of holding people in cells before conviction has arisen from their fear of departure of a potential criminal, once accused of a crime, as it is essential that a criminal justice system ensures that the accused stands for trial. The authorities are empowered to keep a man in custody for 24 hours, any further detention must be authorized by the judiciary. All offences, save a few, are bailable offences. Depending on the graveness of the crime, it is either deemed bailable or non-bailable. Despite sounding fair, the bail system is highly discriminatory against the poor as they are seldom able to furnish the bail amount.

Indiscriminate arrests by the police, delays in delivering justice, difficulty in producing surety, ignorance of the fundamental human rights and reluctance of the court to allow bail are some of the core reasons responsible for the increasing number of under trial prisoners in Indian jails. This glitch in the system can cause a number of people to lose their livelihood as the process often times takes longer than the prison time of the crime he is accused of. The inmate returning to life after spending so many years in a cell often loses touch with the outside world and find themselves unable to hold a job for a long time. They often face difficulties adjusting to their familial and social roles.

According to the National Crime Records Bureau’s Prison Statistics 2016, of the 4.33 lakh inmates in the 1400 Indian jails, 2,93,058 are undertrial prisoners and 3,089 are detenues under preventive detention. This number has increased significantly from 2,82,879 in 2014 to 2,93,058 in 2016 indicating a 3.6% increase. Among these undertrial prisoners, majority are lodged in district jails (51.2%), followed by central jails (34.9%) and sub jails (11.3%). Among the 1,592 women in jails, 1,192 are undertrials, these women reside in the jails along with their children, who are 1,092 in numbes, owing to the rule that provides for children upto 6 years of age to live with their jailed mothers.

Every 2 out of 3 prisoners in India are under trial, this has led to prisons being heavily overcrowded. The jails in India have prisoners upto 14% more than its capacity. As a matter of fundamental rights, the under trials are innocent until proven guilty, but are often subjected to subhuman living conditions and prison violence, they also face incredible physical and psychological torture at the hands of custodial authorities.

Many undertrials have restricted access to legal aid and representation as often times they come from a socially and economically poor society. Arrested for minor crimes by the police, they suffer for a long time in holding cells solely due to the lack of both the financial resources and the awareness of fundamental and constitutional rights.


Another factor adding to the misery of prisoners is understaffing. The staff recruited in Delhi’s Tihar jail is about 50% short of its actual requirement. Such shortage often leads to rampant violence and criminal activities inside the premises of the jail. It also often entails a white collared criminal having amenities such as liquor and mobile phones inside the jail while the socio-economically, challenged undertrials are deprived of their human dignity at the hands of the state machinery.

When an accused person is first presented before the Magistrate, he/she has the right to be represented legally. Under Article 39A of the constitution, it is the State’s responsibility to provide legal aid to citizens in order to ensure that the opportunity to gain justice is not denied to any citizen solely on the basis of social and economic disabilities. In 2005, the CrPC was amended to insert section 436A which states that if an under trial has served half the maximum sentence of the offence for which he had been arrested, he shall be released on a personal bond, as long as the offence is not punishable with a death sentence.

In 2016, the Supreme Court, in Re-Inhuman Conditions in 1382 Prisons case, directed legal aid lawyers to engage with the system in order to release under trials. The Court remarked ‘Unfortunately, even though Article 21 of the Constitution requires a life of dignity for all persons, little appears to have changed on the ground as far as prisoners are concerned and we are once again required to deal with the issues relating to prisons in the country and their reform’

In the landmark case Hussainara Khatoon Vs. The State of Bihar, 1979, the Hon’ble Supreme Court observed that people arrested for minor offences were often detained longer than their formal convictions and recommended the states to build a comprehensive legal aid system to ensure fair and speedy trials for detenues.

Despite, an elaborate system being in place for providing legal aid, lawyers are often allocated only after the charge sheet is filed, not at the time of the arrest or even when the accused is presented before the Magistrate.

On 17 January 2013, The Ministry of Home Affairs issued a set of guidelines to the state governments in order to prevent overcrowding in prisons. It directed the states to :

  • Constitute a Review Committee in every district with the District Judge as Chairman, and the District Magistrate and District Superintendent of Police as members to meet every three months and review the cases.
  • The Prison Superintendent should conduct a survey of all cases where the undertrial prisoners have completed more than one-fourth of their maximum sentence.
  • Prison authorities may educate undertrial prisoners on their right to bail.
  • Home Department may also develop, management information system to ascertain the progress made prison wise in this regard.

As one of the major reasons for delayed proceedings is the difficulty in escorting the under trials to the courts, the State police departments may create a separate, substitute police personnel dedicated to providing escorts for under trials to be taken to the proceedings. They may also ensure that under trial detention is used only as a last resort after all the alternatives are exhausted and collaborate with the state legal services to ensure that the legal aid is provided at the time of arrest in the event that under trial detention must take place.

The state legal service authorities must ensure that more legal aid lawyers are appointed as per the needs of the State and that such lawyers are paid appropriate remuneration on a monthly basis. Monitor the lawyers by demanding regular reports of their cases and hold the lawyers responsible for failing to do so, in order to ensure quality representation to all under trials.

The state governments must ensure that district and central prisons maintain updated list of under trials and details of their cases and make sure that these reach the district prosecution officers, the prison department and the relevant legal services authority.

In conclusion, the excessive number of under trial detainees is a glaring testament to the suffering of the socio-economically challenged man for what is clearly a fault of the prison system.  To ensure justice, it is necessary that all agencies of the criminal justice system come together to effectively implement the provisions of the Criminal Procedure Code and adopt a concerned manner of approach to reform the plight of under trials wasting away in prisons.