The Plight of Undertrial Prisoners In India

Indian jails are overflowing with undertrial prisoners, most of them being from poor and marginalised communities. Undertrial prisoners are those who are not yet convicted of the charge(s) for which they have been detained, and are presumed innocent in law. As per NCRB’s latest data, there are more than 2.7 lakh undertrials in prison, constituting more than two-thirds of prison population in India.

The Supreme Court has directed the National Legal Services Authorities (NALSA) to coordinate with the state authorities and the home ministry to establish undertrial review committee, comprising the District Judge, District Magistrate and Superintendent of Police, in all districts. These must consider release of undertrial prisoners entitled to the benefit of Section 436A of the Criminal Procedure Code (CrPC). The CrPC was amended in 2005 to introduce Section 436A. Under this section, an undertrial prisoner shall be released on own personal bond if he or she has completed half of the period of maximum possible sentence.

Since two decades efforts have been ongoing to decongest Indian prisons and reduce the undertrial population. Despite initiatives such as setting up fast track courts and digitisation of court records, the number of undertrial prisoners continues to be high.

Three issues to be addressed

There are three key issues which need to be dealt with.

Firstly, undertrial prisoners are unable to afford quality legal services to defend themselves in courts. State governments provide free legal services to needy persons through the district and taluka legal service authorities but these services often lack quality. There are many complaints against these lawyers about irregular appearances in courts, and lack of communication with their clients. The main reason behind these complaints is the very poor honorarium paid to the legal aid lawyers.

Secondly, there is an issue with existing financial system of bail in the country. If the accused is a poor person and cannot pay the cash bail or produce a surety, he/she has to stay in prison till the trial ends. Personal Recognizance (PR) Bond is meant for such undertrials. The Supreme Court has reiterated it in various landmark judgments and it has been cemented by the amendment in CrPC under Sections 436 and 436A. Section 436 specifies that if an undertrial arrested in petty cases continues to languish in prison for more than a week after his bail order has been passed, he/ she can be assumed to be indigent and therefore shall be released on a PR Bond by the trial court. The courts are not paying required attention to Section 436 cases, and hence the number of undertrial prisoners continues to remain more or less the same.

Thirdly, it takes long-time to complete the trial process due to poor judge-population ratio in India. Presently the ratio is 14 judges per million people. The idea of fast track courts has substantially reduced the pendency of cases at the sessions court level but it has come at the cost of justice. The fast track courts focussed more on disposal of cases rather than on “due process”. This may be the reason for high conviction rates in fast track courts.

Measures to address issues with undertrials

• Increasing judge–population ratio substantially.
• Decriminalisation of minor offences.
• Using the provision of arrest with greater discretion by the police.
• Implementing the provision of the police granting bail in bailable offences.
• Timely provision of police escorts to take undertrials to courts on their court dates.
• Disaggregate the sub-categories within the prison population and address the issues based on the disaggregation of data.
• Release of undertrials under Section 436 and 436A of CrPC.
• The prison departments should create a cadre of trained social workers to work with prisoners, families of prisoners and released prisoners towards promoting their legal rights and rehabilitation.

Critical Analysis:

The primary constitutional and moral concern with undertrial detention is that it violates the principle that there should be no punishment before a finding of guilt by due process. However, question is why such a high proportion of undertrials is there in India in the first place? Doesn’t the huge number of undertrials shows failure of both the Section 436A of CrPC as well as our Criminal Justice system to successfully convict in time? This failure remains unaddressed. The release of undertrials stands justified morally but it may also further aggravate the pathologically low rates of conviction in our country. Thus, there is a need for substantive reforms to the investigation and trial process in the country.