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Updated: Mar 14, 2022


Undertrial prisoners constitute a large part of prisons all over India and this number is increasing every year. This results in overcrowding the prisons, 3,23,537 in 2018 to 3,30,487 in 2019.The rise in the number has come up with several challenges for the authorities in the matter of safety, security, cost of maintenance and hygiene of the undertrials. If we look at the present condition of these prisoners, it is a matter of concern since there is a huge violation of their basic human rights. It raises questions on India's Judicial System. The main aim of this research paper is to highlight various rights which the Constitution of India grants to under trial prisoners which are limited to some extent but upon its violation, people can seek justice.


In a common language “under trial” is an unconvicted prisoner or a person who has been detained in a prison for investigation, inquiry or trial for the offence he has been alleged of committing. The report “ Prison Static India 2019” released by National Crime Bureau in Oct showed that 69.05% of the prisoners are under-trial prisoners. Our system is questioned on the aspect of being just and fair, now deprives 2,45,244 people of their liberty who are innocent in the eyes of law. There should be an effecting criminal justice system that ensures that the accused stands trial for the offence which they might have committed. Depending on the gravity of the crime, the police has the power to keep the accused in the custody for 24 hours after which the judiciary is authorised to give further detention to the accused. The reason for keeping undertrials in custody is to protect the witnesses from getting induced or influenced by the accused but delay in the trial of cases is the main human right infringement of the undertrials. The basic human rights provided is not biased towards people who are in or out of the prison. Right to life and personal liberty includes a right to a speedy trial and ensures just fair and reasonable procedure. However, 70% of trials accused are denied to exercise these rights when in need.

Under trials - overcrowding the prison-The Executive and Judicial system have come up with various programmes and promise to rectifythe situation of the under trialprisoners, however, it still does notproviderelief to lakhs of undertrials who are still languished in various prisons.

Crisis in the Justice System

Thousands of under trial prisoners have been affected by the slow march of the justice system. India’s Centralised justice has a very low ratio of judges, a lack of proper functioning of the prison system and proper use of information and communication tool for carrying the justice system and low police- population ratio. Very little attention is paid to investigation and prosecution which impacts the fate of countlesstrialsprisoners.

Delayed Investigation

Delay in investigation and trial process by police and prosecutionresults in a great number ofUndertrial languished in prisons. Late filing of the charge sheet, endemic corruption and unnecessary arrests leads to delay in prosecution.

Deficient Prosecution System

The serious issues with the prison management system and prosecutors added miseriesto the Undertrial prisoners. Even when there is the availability of competent public prosecutors, there is a lack of basic facilities available to them for carrying out their work efficiently. The lake access to the legal database as well as research and administrative assistants.

Inadequate Funding

A glossy underfunded criminal justice system deprives prisoners to get a fast and speedy trial. Indian Judiciary has been allocated a minuscule amount (1%) of the total budget of India. This has impacted the policing, staff salary, fuel and office expenses, forensic techniques and upgrading the investigated knowledge on new modus operandi.

Poverty and Illiteracy

Not only the various systematic issue,the position and identity of the trials prisoners have impacted their condition in prisons. The majority of undertrials are poor,illiterate, belong to religious minorities and lower castes. They face problem while arranging for the public defender, personal bond and getting sureties from people for securing bail. These prisoners are either unaware of the bail policies or are too poor to arrange help for themselves. Strong legal aid is absent as a result of which thousands of undertrials spent years behind the prison.

Problems with the bail system

The Code of Criminal Procedure,1973 categories offences as bailable and non-bailable. Although the term bail has not been defined. Bailable offences are less serious offences and the person committing is entitled to receive bail as soon as the bail amount is furnished. The existing bail system militates against the underprivileged and poor.

Slow penetration of information and communication technologies

Lack of basic judicial infrastructure affects the speed of trials. Both trial system and prosecution have not kept pace with the ICTs. Setting up video conferencing facilities and digitalisation of jail records would cut the overall expense of the trial and easily available for every economic group.

Human Rights of Under Trial Prisoners

Human rights are set off basic and natural birthright which is guaranteed do all humans equally without any discrimination. These rights are also available to the person under detention including under trial convicted prisoners. Article 25 of the Universal Declaration of Human Rights states that all human beings are born free and equal in dignity and no one shall be subject to torture, cruelty, degradation or inhuman form of punishments.

Part III and Part IV of the Indian Constitution talks about Fundamental Rights and Directive Principals of State Policies which are similar to the principles of human rights. Article 14 grants equality before the law and equal protection of law within the territory of India. Article 20 protects the convicted person. A person can only be convicted if he had violated the law enforcement at the time committing the offence. The penalty he will be subject to shall not be greater than that which might have been inflicted under the law enforced at the time of the commission of the offence. No person shall be prosecuted and punished for the same offence more than once and stand as a witness against himself. Article 21 prevents the person from deprivation of his life and personal liberty except according to the procedure of law. There are several rights guaranteed to the arrested and detained person under article 22. Such rights include prevention from detention of a person without being informed about his arrest nor shall be denied the right to consult, defend and hire a legal practitioner of his choice. Person arrested and detained shall be presented before the nearest magistrate within 24 hours from the time of the arrest. The Central government assists in improving the condition of prisoners as well as prisons.Providing security to prisoners, medical assistance, development of Borstal schools, repair and renovate prisons, facilities to woman offenders and vocational training.

Rights of under trial Prisoners in India

1) Right of Speedy Trial- Under Article 21 of the Constitution, the Right of Speedy Trial is one of the fundamental rights of prisoners. It ensures fair, just and reasonable procedure. In HussainaraKhatoon v. Home Secretary, the State of Bihar, it was held that a procedure that keeps such a large number of under-trial behind jails without trial is not fair, just and reasonable.

2) Rights against Inhuman Treatment of Prisoners- Life and personal liberty is cherished under article 21 of the Indian Constitution. A life carried with human dignityincludes protection from torture and assault by the State or its functionaries. The Supreme Court of India had issued various measures to prison and police authoritiesfor safeguarding the rights of the prisoners and protect them against torture.

3) No handcuffing- A person who is arrested or is under trial should not be handcuffed if not provided justifying circumstances by the authority. There is no reason for handcuffing the accused if there is no tendency to escape or if he is charged under bailable offence.

4) Right to information and to meet family members and friends- The right to inform family and friend about the arrest is part of the Personal Liberty embodied in Article 21 of the Indian Constitution. A person under custody has the right to consult and to be defended by a legal practitioner of his choice. Section 304 of The Code of Criminal Procedurealso mentions this right.An arrested person in custody can request one of his relative or friend to take interest in his welfare. The police officer shall inform the arrested person of this right once they reach the police station and required to make an entry in the diary of the person who is to receive information about the arrest.

5) Rights to have an interview with lawyers- An accused afterbeing arrested has the right to choose a lawyer of his choice and get defended. A person who is unable to hire a lawyer as the reason of poverty, incommunicado or indigencesituation, then the state had to provide free legal services and provide a lawyer to such person. If free legal services are not provided then the trial itself be vitiated and contravenes Article 21.

6) Narco Analysis/Polygraph/Brain Mapping- The Supreme Court in the Selvi Vs State of Karnataka considered thenarco analysis, polygraph and brain mapping as unconstitutional since it violates human rights. Although this decision was questioned by various investigators since it will cause hindrance in the investigation as well as provide an easy escape to the alleged criminals. The Supreme Court further stated that a person canbe subjected to such tests only when he gives his consent for it and such test will not be admissible as evidence in the court but only for investigation. These testsviolate Article 20(3) which preventsa person from giving evidence against himself.

7) Right to get Legal Aid- A three judges bench of the Supreme Court in the case of MadhavHayawadanRao Hosket vs. the State of Maharashtra declared that the Government must provide legal services to the accused person under Article 21 and 39-A along with Article 142 and section 304 of Cr.P.C. The 42nd Amendment Act,1976 included free legal aid as one of the Directive Principle of State Policy. Article 38 of the Constitution promotes the welfare of the people in social, political, economic and justice by the State. The Legal Service Authorities Act, 1987 guaranteed legal aids and various State governments had established an advisory board and legal aid services.

One of the major sources of injustice for the under trial prisoners is Pre-trial detention due to lack of legal services. The Law Commission of India in 2017, recommended that undertrials who have completed one third or up to seven years of their imprisonment can be released on bail. Some other basic rights of undertrials are; right to basic need such as food, water, health and shelter, the right to evoke the writ of habeas corpus, the right to be compensated for violation of human rights and the right of employment and wages.


The majority of prisoners in jails are undertrials. Although various amendment has been made against unnecessary arrest and to allow release on bail. Various rights are guaranteedto the undertrials for protecting them from unjust and unreasonable practice in prisons. However poor implementation of judiciary decisions and laws related to the topic, lack of proper police authorities and prison administration resulted in the increase of under trial prisoners. There is a need for:-

1) Establishing fast track courts,

2) Section 167 of the CRPC to be strictly followed both by police and courts which gives a time limit for a police investigation for the under trial accused and produced before the magistrate on the date of hearing,

3) Right to Speedy Trial to be practised efficiently which is mentioned under Sections 309, 311 and 258 of the CRPC,

4) There should be a separate institution made for under trial prisoners and convicted person and they should be charged differently and

5) There should be an increase in the number of judges and magistrates so to prevent delay in cases and encourage fast delivery of justice.



:Fatima Tuz Zahra


B.A.L.L.B, 5thSemester

Rights of undertrial prisoners (1)
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