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Insights into Editorial: Be the solution



Insights into Editorial: Be the solution 



The centre has asked all high court chief justices to “review” cases of undertrials who have been incarcerated for long and to “take suo motu action for their release”. This is a move in the right direction.


Undertrials in India:

According to the ‘Prison Statistics India 2015’ report, released by the National Crime Records Bureau (NCRB), Sixty-seven per cent of the people in Indian jails are undertrials — people not convicted of any crime and currently on trial in a court of law.

  • Among the larger States, at 82.4%, Bihar had the highest proportion of undertrials, followed by Jammu & Kashmir (81.5%), Odisha (78.8%), Jharkhand (77.1%) and Delhi (76.7%).
  • The occupancy rate at the all India level at the end of 2015 was 114.4%. At 276.7%, Dadra & Nagar Haveli is reported to have most overcrowded prisons, followed by Chhattisgarh (233.9%), Delhi (226.9%), Meghalaya (177.9%) and Uttar Pradesh (168.8%).


Reasons for the delay in justice:

  • Overburdened judiciary is a major reason for the delay in justice.
  • Police and prison officials often fail to fulfill their roles, leading to long delays in trials.
  • Most of the undertrials come from disadvantaged social groups — several surveys have shown that 50-55% of the undertrials are from minority communities and Dalits.
  • Lack of resources constricts their ability to seek out lawyers and hostile police and prison authorities are rarely of help — despite a 1980 Supreme Court ruling that Article 21 of the Constitution entitles prisoners to a fair and speedy trial as part of their fundamental right to life and liberty.
  • The understaffed judiciary compounds the problem. Section 167 of the Code of Criminal Procedures mandates that judges can extend a detainee’s custody for a period of 15 days at a time. For that to happen, the detainees have to be produced regularly before the courts. This rarely happens; proceedings don’t take place in time and the undertrials are shuttled from court to court.
  • Corruption is also an endemic problem; in 2013, Transparency International found that 62% people reported paying bribes during their interactions with the police. Misaligned incentives to arrest persons (for example, to demonstrate the progress of investigations) have resulted in 60% of all arrests being “unnecessary or unjustified”.
  • Prison officials are one of the most important, and often the most neglected, part of the criminal justice system. They regularly review the legal status of undertrials to determine whether they have spent enough time in custody to warrant release under Section 436A. Unfortunately, on average, only 66.3% of the sanctioned posts are filled, with Bihar having only 21.1% of the sanctioned prison official strength.


Other concerns:

  • Overcrowding is one of the biggest problems faced by prison inmates. It results in poor hygiene and lack of sleep among other problems.
  • More than 65% of the undertrials spend three months to five years in jail before getting bail.
  • A fourth of all the under trials have been under detention for more than a year.
  • Seventy per cent of the convicts are illiterate or have studied only below class tenth.


Laws in this regard:

The Code of Criminal Procedure was >amended in 2005, introducing Section 436A, to reduce overcrowding of prisons. Under this section, an undertrial prisoner shall be released on own personal bond if he or she has undergone detention for a period extending to one half of the maximum period of imprisonment specified for that offence.


What needs to be done?

  • Keeping in view the human rights of the prisoners, it is essential that they are given reasonable space and facilities in jails.
  • An undertrial review committee, comprising the District Judge, District Magistrate and Superintendent of Police, should be set up in each district. The onus of constituting such a panel for every district should be put on the National Legal Services Authority, acting in coordination with the State Legal Services Authority.
  • The legal services authorities in various States must play a principal role in inculcating awareness among prisoners about their rights, especially provisions that entitle them to freedom.
  • The real solution, however, does not lie merely in the early release of prisoners on bail, but in expediting the trial process.


Way ahead:

The primary constitutional and moral concern with undertrial detention is that it violates the normative principle that there should be no punishment before a finding of guilt by due process. So, undertrial detention of those suspected, investigated or accused of an offence effectively detains the “innocent.” However, all criminal justice systems across the world authorise limited pretrial incarceration to facilitate investigation and ensure the presence of accused persons during trial. So, the critical challenge in this area is to identify the normatively optimal and necessary level of pretrial incarceration and then design a criminal justice system to achieve this.

Reforms should be oriented towards bringing criminal justice functionaries together and starting a conversation. Instead of merely announcing new initiatives, emphasis should be on ensuring the implementation of existing provisions, such as regularising the functioning of the Undertrial and Periodic Review Committees.      



All the stakeholders — the government and judiciary —should take collective responsibility” to ensure that that the “institutional mechanism” works “seamlessly to ensure access to justice for the undertrials”. The work should begin in right earnest. The sooner this is addressed, the better it is for the administration of criminal justice.