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Rights Of Under-Trial Prisoners In India

Author: Manishka Seal Student, Amity University, Kolkata

Who are Under-Trial Prisoners?

Under-trial prisoners refer to those people who are accused of a crime, but it has not been proven in a court of law that he is guilty and hence, cannot be called a ‘convict’ in the technical sense. They are facing trial in court and are detained in judicial custody, waiting to appear in court, before a judicial magistrate. In other words, under-trial prisoners include those people who are:

  1. Charged with a non-bailable offence, whose bail has been denied.

  2. Charged with a non-bailable offence, whose bail has been granted, but they couldn’t fulfil the conditions, mandated by the court.

  3. Charged with a bailable offence, whose bail has been granted, but they aren’t being able to provide the requisite sureties.

Why are there so many under-trial prisoners?

The National Crime Records Bureau released a report ‘The Prison Statistics India’ in 2015, which revealed that out of all those people who have been put behind bars, around 67% of them are under-trials. This indicates that they have outnumbered the convicts. India is considered to have the 18th highest number of under-trial prisoners in the world, and the 3rd highest in Asia.  There are many reasons for the increasing number of under-trial population in the country, some of which are mentioned below:

  1. Pendency of cases: The number of under-trial prisoners is directly proportional to the number of cases that are pending before the courts of law. The proportion of under-trial prisoners who have spent less than 365 days in prison is decreasing, which shows that more under-trials spend over a year in jail, without even being convicted.

  2. Indiscriminate arrests: The wide scope for making arrests, given to the police, has been put to misuse by the police themselves, leading to unnecessary detentions. Some people are arrested, despite cooperating with the police in the investigation and not being likely to escape trials. Section 41 of the Code of Criminal Procedure was amended to prevent unnecessary arrests. In Joginder Singh v. State of Uttar Pradesh[1], the court has held that arrests should be an exception, not a rule.

  3. Illiteracy: Around 29% of under-trial prisoners are illiterate, which means, they are unaware of the numerous rights guaranteed to them as under-trials and hence, cannot resort to the legal system to seek justice. Some prisoners are not even aware of the grounds on which they have been arrested or the maximum period of punishment for the offence.

  4. Poverty: A large number of under-trial prisoners are poverty-stricken, and cannot arrange for the necessary securities or gather money to approach the courts or pay for the bail.

  5. Non-availability of police personnel to escort the under-trials in court: Sometimes, there aren’t enough police personnel available to escort the under-trials to court, which automatically extends the period of judicial custody. This problem is more evident, in the case of women under-trial prisoners, because they are to be escorted by female personnel only. Despite the availability of video conferences, it is extremely limited. In 2018, 929 district courts and 342 prisons availed the facility of video-conferencing.

Problems Faced by Under-Trial Prisoners:

The Universal Declaration of Human Rights, 1948 recognised a principle that presumes every accused to be innocent until proven guilty. Yet, this principle is not upheld in the case of under-trials, since they are already put behind bars, and made to suffer the punishment, without even being completely tried and convicted. Detainment of under-trial prisoners amounts to treating them as guilty.

Some problems, faced by the under-trial prisoners, are discussed below:

  1. There are no separate prisons. An under-trial prisoner is detained at the same prison where a guilty convict has been detained. They are placed with coarsened criminals, under whose influence the under-trials might turn into offenders or criminals.

  2. There are incidents of violence in the prison and improper management by the police. In the Bhagalpur Blinding case[2], the police took the prisoners’ eyeballs, with the help of a needle, and poured acid in them, thereby blinding them.

  3. The prisons suffer from the problem of overcrowding, due to which the provision of proper and hygienic prisons becomes an issue. There are many prisoners, who come from areas, suffering from diseases. When those prisoners are put in overcrowded prisons, they spread those infectious and communicable diseases. In 1998, the National Human Rights Commission revealed in a study that 76% of the deaths caused in prisons were the result of the menace of tuberculosis.

  4. Society sees imprisonment during a trial to be as dishonourable as imprisonment after conviction. Even if the under-trial prisoners are acquitted after a proper trial, the fact that they had been detained affects his societal relations as well as his career. He might not be able to find a job for sustenance, which is going to be a more serious issue, if he is the sole earner in the family. If an under-trial prisoner has been put behind bars for a long time, and if he is the only one in the family who brings home the income, then his family would be running out of money and be socially stigmatized. This might lead to the family members committing suicide or resorting to unlawful means.

Rights Provided to the Under-Trial Prisoners:

An under-trial prisoner is conferred with certain rights to seek justice.

  1. Section 436A: Section 436A[3] of the Criminal Procedure Code states that if an under-trial prisoner has already served half of the maximum period of sentence for the offence he had been charged with, he can be released on his ownsurety. It is not applicable in cases where the specified punishment for the said offence is death. In such cases, the court may order continued detention beyond half of such punishment or release him.

  2. Right to be produced before a magistrate within 24 hours of arrest: According to Article 22(2)[4] of the Constitution and Section 57[5] of the Criminal Procedure Codestates that every arrested person who is put behind bars should be brought before the nearest magistrate within 24 hours of such arrest. The purpose is to protect him from an arbitrary arrest, leading to maltreatment.

  3. Right to consult and be defended by a lawyer: An ordinary person does not have the requisite knowledge and skills to defend himself in court, against the prosecution, who is a skilled professional. Thus, underArticle 22(1)[6] of the Constitutionand Section 303[7] of the Criminal Procedure Code, the accused has the right to consult and be defended by a legal practitioner, of his choice. It is indispensable to a fair trial. In India, where people are fighting poverty, it is implied that a lot of people cannot afford to take help from a lawyer. For them, Article 39A[8] of the Indian Constitution provides for free legal aid to ensure that no person’s right to access to justice is denied because of his financial situation. In Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar[9], it is the constitutional duty of the State to provide legal aid to those who cannot afford it.

  4. Right not to be handcuffed: Our criminal justice system is based on the presumption of the accused to be innocent until proven guilty beyond reasonable doubt, as enumerated under Sections 101 to 105[10] of the Indian Evidence Act, 1872. Hence, an under-trial prisoner should not be handcuffed. In Prem Shankar Shukla v. Delhi Administration[11], the Supreme Court held that handcuffing a person is objectionable.

  5. Right to a fair trial: The under-trial prisoner must get a fair and reasonable trial. It must be fair to the prosecution, as well. It is inevitable to the interests of society. A fair trial ensures that the accused is not convicted without reasonable proof to believe that he is guilty.

  6. Right to bail under default clause: As enumerated in Section 167 (2)[12] of the Criminal Procedure Code, if the prosecution fails to file a charge-sheet within 60 days or 90 days, as the case may be, the under-trial prisoner will be released on bail on grounds of such default.

  7. Right to Speedy Trial: Often have we heard ‘justice delayed is justice denied’. The trials of under-trial prisoners are delayed over and over again. According to Section 437 (6)[13] of the Code of Criminal Procedure, if an accused is charged with a non-bailable offence and his trial is ongoing for 60 days, he would be released on bail. Unfortunately, it just lessens the suffering of the accused and does not really improve the status quo of pending cases. It is just applicable in cases before a magistrate. In Hussainara Khatoon v. Home Secretary, State of Bihar[14], the Supreme Court held that the huge number of cases pending before the courts is not reasonable and does not conform to Article 21[15] of the Indian Constitution.

  8. Right to security inside prison: Article 21[16] of the Indian Constitution applies to all, including under-trial prisoners. If the security of an under-trial prisoner is hampered and his life is taken away, the government must compensate for it to the dependents of the person.

  9. Right to be informed and meet family and friends: Article 22(1)[17] of the Indian Constitution and Section 50[18] of the Code of Criminal Procedure provides that an accused should be informed on what grounds he has been arrested. In Sunil Batra v. Delhi Administration[19], the Supreme Court recognised that it is the right of the prisoners to be visited by their friends and family.

  10. Right against narco-analysis/brain mapping: The methods of a polygraph test, narco-analysis, etc. are sought after, owing to development in science and technology. Nonetheless, the Supreme Court, in Selvi & Ors. v. State of Karnataka &Anr.[20], held that conducting these tests without the consent of the ones being tested amounts to a violation of the right to privacy and is, thus, unconstitutional.


Under-trial prisoners form the majority of the prison population in India. In the criminal justice system, they are the ones who are affected the most. They spend the significant years of their life in jail, without even being convicted. This whole process entails a huge deal of emotional trauma on the part of the accused. Less than one-third of the under-trial prisoners are illiterate and many of them are poor. As far as their rights are concerned, most of the under-trials are not even aware of them, owing to the factors of illiteracy and poverty. Thus, they cannot seek justice based on the rights provided to them. This situation can be improved by making the most use of the existing legal framework, looking into the cases of the under-trials from time to time and boosting their trials.

[1]Joginder Singh v. State of Uttar Pradesh, 1994 AIR 1349.

[2]Khatri &Ors. v. State of Bihar, 1981 SCC (1) 627.

[3]Criminal Procedure Code, 1973.

[4]India Const. art. 22, cl. 2.

[5]Supra note 3.

[6]India Const. art. 22, cl. 1.

[7]Supra note 3.

[8]India Const. art. 39, cl. A.

[9]HussainaraKhatoon&Ors. v. Home Secretary, State of Bihar, 1979 AIR 1369.

[10]Indian Evidence Act, 1872.

[11]Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535.

[12]Supra note 3.

[13]Supra note 3.

[14]Supra note 9.

[15]India Const. art. 21.


[17]India Const. art. 22, cl. 1.

[18]Supra note 3.

[19]Sunil Batra v. Delhi Administration, 1980 AIR 1579.

[20]Criminal Appeal No. 1267 of 2004.

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