Author Avatar

Jurisedge Academy


Share post:

Human rights are freedoms established by custom or international agreements that impose standards of conduct on all nations. Human rights are distinct from civil liberties, which are freedoms established by the law of a particular state and applied by that state in its jurisdiction. Specific human rights include the right to personal liberty and due process of law; to freedom of thought, expression, religion, organization, and movement; to freedom from discrimination based on race, religion, age, language, and sex; to basic education; to employment; and property. International conventions, treaties, and organizations have defined human rights laws, particularly the United Nations. These laws prohibit practices such as torture, Slavery, summary execution without trial, and arbitrary detention or exile.

The purpose of the criminal justice system in any country is to protect not only the rights of the victims but also the convicts, prisoners, and under trial. They cannot be bared of their fundamental and human rights. Undertrial prisoners face trial in any court and are kept in judicial custody in prison during such a trial. In simple terms, under trial prisoner is one who has been arrested for some crime and is waiting to appear before the magistrate. Such a person is accused, and his or her guilt has not been proven. Hence he cannot be called a convict. According to the 78th Report of the Law Commission of India (1979),

under trial prisoner is a person who is in judicial custody or remand during an investigation. An under-trial prisoner is one who has been detained in prison during the period of investigation, inquiry, or trial for the offense they are accused of having committed.”

A vast majority of undertrial prisoners are downtrodden and poor who are either unable to furnish the bonds for release or are unaware of the judicial remedy to seek bail. All the persons detained in prison have a right to trial within an inexpensive time. Prolonged detention and delay in the trial of cases not only violate the right to liberty guaranteed to every person but also amount to the denial of human rights of the undertrials. Long detention may adversely impact the lives of the under-trial prisoners. The overuse of under-trial detention effectively ends up punishing the people before they are convicted and makes a mockery of their right to be presumed innocent until proven guilty. This can often increase the risk of ill-treatment and torture inside the prisons.

Generally poor find our legal and judiciary oppressive and find themselves in a position of inequality with the non-poor. Not only this, they’re kept with the hardened criminals being subjected to torture by their fellow inmates. There may additionally be an opportunity for them to show into criminals. Moreover, the prison is overcrowded, resulting in various health problems and illnesses. Despite various enactments and directions by the court, there is no improvement in the treatment of undertrials. The number of undertrials in prison can be reduced only by speeding up the trial, simplifying the bail procedure, and by periodic reviews of the cases of undertrials. Moreover, there should be separate prisons for undertrial prisoners.


The problem of under-trial prisoners has assumed new proportions in recent years. Thousands of under-trial prisoners are languishing in various jails in different states for periods much longer that the maximum term for which they could have been sentenced if convicted. “Many are innocent persons caught in the web of law eagerly waiting for their trial date, and several are even prepared to confess their crime and accept the sentence. There are several reasons for this miserable plight of undertrials, some of them being the court’s inability to take up the cases because of their busy schedule, the prolonged police investigation, unsatisfactory bail system and legal representation being beyond the meagre means of poor offenders.

The pre-trial detention essentially involves the question of justice, liberty, public safety and burden on the public exchequer. The poor are generally subjected to pre-trial detention mostly because they cannot afford sureties and stand personal bonds. It not only affects the family life of the undertrial but also adversely affects his morale due to the vicious impact of the prison environment. Mr Justice V.R Krishna Iyer highlighted the agonies of pre-trial detenues in the following words:

            “The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to psychological and physical depravation of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendants losses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family”[i].

Expressing grave concern at the distressing condition of undertrials in Bihar jails, the Supreme Court in Hussainara Khtaoon v. Home Secretary, State of Bihar[ii] sentence was illegal and a blatant violation of their fundamental rights guaranteed under Article 21 of the Constitution of India. The court observed that a “speedy trial” is a constitutional mandate, and the state cannot avoid its constitutional obligation by pleading with financial or administrative inability. Consequent to the directions issued by the Supreme Court in this case, the state of Bihar released as many as 18,000 under-trial prisoners in 1981, and other states followed suit.

Despite the Supreme Court’s landmark decision in Hussainara, the condition of undertrial prisoners is no better, and more than one lakh undertrial prisoners are languishing in prisons in India. The provision of section 167 of the CrPC, 1973 regarding the time limit for completion of the police investigation and that of free legal aid to indigent and poor undertrials or liberalization of bail etc., have not helped in minimizing the number of undertrial prisoners in an Indian jail.

One of the reasons for multiplying the number of undertrial prisons each day is the system of bail, which operates very harshly against the poor because they find it challenging to furnish bail even without sureties. Being unable to obtain their release on bail, they must remain in jail until the court takes up their case for trial. The pre-trial detention disrupts their family life and leads to disastrous economic consequences. They are also prevented from taking the necessary step to prepare for defence. Although the provisions contained in Articles 39-A and 22(1) enumerate the constitutional rights of the accused to be provided free legal aid services and the services of the counsel of their choice to the indigent accused person, this help is implicitly guaranteed under Art 21. But the fact remains that the functioning of the judicial system still weighs heavily against the poor as compared with the non-poor[iii].

An undertrial may be warranted in prison on the following grounds:

  1. In case of a very grave offence;
  2. if the person arrested is likely to interfere with witnesses or impede the course of justice;
  3. if the person arrested is likely to commit the same or any other offence;
  4. if he may fail to appear for trial.

The criminal justice system in our country is based on two principles, i.e. any person arrested is presumed to be innocent unless proven guilty and secondly, the duty of the state and the court to see that justice is done to the people and the victim. To achieve these principles, the process of investigation and trial should be completed without delay. But they are not being achieved, and undertrials keep languishing in jail for years. The poor generally finds it difficult to furnish bail even without sureties because the amount fixed by the court is excessive. Hence in many cases, the poor are unable to satisfy the police or the court about their solvency for the amount of the bail, and where the bail is with sureties, as is in most cases, it becomes an impossible task for the poor to find persons sufficiently solvent to stand as sureties[iv]. Because of all this, they have to remain in jail until the time the court their case comes up for trial before the court leading to grave consequences such as:

* In spite of the fact that assumed innocent, they are exposed to mental and actual privations of jail life,

* Pre-trial detention disrupts their family life and, in most cases, is economically disastrous for the family,

*It prevents them from contributing to the preparation of their defence.

Article 14, Article 19, and Article 21 of the Indian Constitution, known as the Golden Triangle, protect the fundamental rights of equality, freedom, and life and dignity, respectively. One of the basic problems faced by the prisons in India is overcrowding. Overcrowding leads to several other connected problems like lack of sanitization spread of diseases like HIV, AIDS, tuberculosis etc. Many mental illnesses like estrangement, schizophrenia and stress-related issues are also found prevalent.

The undertrials also have the right to safeguard against the inhumane treatment meted out to them in the prisons. The first-time offenders should be kept away and at a distance from the hardcore culprits as they can negatively influence them. There have been numerous cases of harassment and unruly behaviour towards the undertrial from the other convicts. In the D.K. Basu judgement, the court pointed out that any treatment that is against human dignity or imposes avoidable torture and treats humans in a subhuman way will be seen as arbitrary and can be questioned or contested under Article 14.

Discussion on Human Rights of Undertrial Prisoners

The treatment of undertrials in prisons is not satisfactory, as seen above. The human rights of these prisoners are violated. These are basic and inalienable rights available to every person by virtue of being born as a human. These rights are said to be natural and basic rights of all human beings without any discrimination on the basis of sex, caste, ethnicity, language, etc. The human rights of undertrial prisoners have been analysed in detail.

Every person so arrested has a right to be produced before the magistrate within 24 hours of his arrest. This right flows from Article 22(2) of the Constitution of India and Section 57 of CrPC. Such a safeguard is provided with an intention to protect the person under custody from the likelihood of ill-treatment and torture in custody by the police. This right is important as it ensures that police cannot arbitrarily keep the person in custody.

The Supreme Court, in the case of Sharifbai v. Abdul Razak[v] held that if the accused person is not produced before the magistrate within the stipulated time, then such detention will be wrongful. Also, the accused person so arrested cannot be detained in custody by a police officer without informing him of the grounds for such arrest[vi]. He shall also be informed about his legal right to bail[vii]. Such a right allows the arrested person to apply for bail and to prepare any other defence in time[viii].

In the case, State of Rajasthan v. Balchand @ Baliay[ix], the Supreme Court has ruled that it is not necessary to detain the accused person in court if the appearance of the accused can be secured by other means. The court also stated that bail and not jail should be the norm. Further, Article 22(1) of the Constitution of India provides the arrested person with the right to consult and to be defended by a legal practitioner of his choice. But most of the undertrials are poor and are not able to engage a lawyer or furnish the bonds for release. Hence Article 39A of the Constitution of India provides for free legal aid. This article ensures that access to justice is not denied to anyone because of his economic or other disabilities. This article enacts a mandate that the State shall provide free legal aid through suitable legislation or schemes.

The Supreme Court held in M.H. Hoskot v. State of Maharashtra[x] and Hussainara Khatoon v. State of Bihar[xi] that a procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would have to go through the trial without legal assistance cannot be regarded as reasonable, fair and just under Article 21 of the Constitution of India. It also said that a prisoner seeing his liberation through the court process should have legal services available to him[xii]. The court also directed that when the undertrial prisoners were produced before the magistrate on the next remand date, the state government should provide them with a lawyer at its own cost for the purpose of making an application for bail and opposing remand. Our criminal justice system is based on the principle that a person arrested is considered innocent unless proved guilty beyond reasonable doubt by the court. Hence an arrested person or an undertrial prisoner shall not be subjected to handcuffing.

The Supreme Court, in the case of Prem Shankar Shukla v. Delhi Administration [xiii] condemned the use of handcuffs in chaining prisoners and held that no prisoner should be handcuffed routinely or merely for the convenience of the custodian or escort. Even where, in extreme circumstances, handcuffs become necessary, the escorting officer must record the reasons for doing so and show it to the presiding judge for his approval. Some of the Human Rights of Undertrial Prisoners are enumerated below;-

  1. Right to a speedy trial: they have a constitutional right to a speedy trial as well as a fair trial.
  2. Right against inhuman treatment: they have the right to be treated with dignity and not be tortured or subjected to any form of inhuman treatment. To this end, they are not allowed to be handcuffed while being transferred from prison to court unless valid reasons can be provided for the same.
  3. Right to legal assistance: they can avail legal aid to assist with their case during their time as an undertrial prisoner. If they do not have the means to avail themselves, they can get free legal services by applying to the court.
  4. Right to meet the family: their family member or friend should be informed of their arrest and must have the option to visit the prisoner subject to specific security criteria.


Undertrial prisoners have been accused of some crime and waiting to appear before court. They cannot be called a convict because their guilt has not been proved. A huge majority of undertrial prisoners are poor and are unable to furnish bail for their release. They are not made aware of their legal rights, i.e. the right to free legal aid, the right to get the legal practitioner of their choice, the right to bail, etc. They live in a disturbing condition in jail, don’t have access to adequate medical care, and are tortured and exploited. living for long-time detention of the undertrials not only violates their right to liberty but also amounts to the denial of human rights to those poor people that needs protection, care, and consideration of the law and the criminal justice system. Even though the government tried to unravel this problem but yet unable to try to do it. Generally poor find our legal and judiciary oppressive and find themselves in a position of inequality with the non-poor. Not only this, they’re kept with the hardened criminals being subjected to torture by their fellow inmates. There may additionally be an opportunity for them to show into criminals. Moreover, the prison is overcrowded, resulting in various health problems and illnesses. Despite various enactments and directions by the court, there’s no improvement in the treatment of undertrials.


  • The psychological state of the undertrials should be considered seriously because it can cause trauma thanks to the harsh treatment from the society outside also.
  • They should be made aware of their rights as a prisoner and will be handled with dignity.
  • Only by the tactic of speedy trials can the issues of congestion and overcrowding in jails. This can also cause better and more effective service of justice, lowering the burden on the courts and prison administration.
  • The number of undertrials in prison is often reduced only by speeding up the trial, simplifying the bail procedure, and by periodic review of the cases of undertrials. Moreover, there should be a separate prison for undertrial prisoners.
  • There should be various awareness programs conducted by the government, especially in the rural areas, just to make everyone aware of the right of prisoners of undertrial.
  • The legislature of state should work to make an enactment which specifically protects various rights of the undertrial prisoners.

Simran Kesari is a B.A.LL.B. (Hons.), a Semester 8 student of Shambhunath Institute of Law Prayagraj Uttar Pradesh.

Disclaimer:  The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.

You can access our Recent Legal News Archives and our Blogs on legal updates from around the globe.

For daily legal updates, you may follow us on Instagram and LinkedIn and join our Telegram channel.

Image Credit: Scroll

[i] Moti Ram v. State of Madhya Pradesh, (1978) 4 S.C.C 47 at para 14

[ii] A.I.R 1979 S.C. 1360

[iii] Prof N.V. Paranajanpe, Criminology and Penology 18th edition

[iv] P.N. Bhagwati, Human Rights in the Criminal Justice System

[v] AIR 1961 Bom 42.

[vi] Ibid.

[vii] Article 22(1) of COI, See also Section 50(1) CrPc.


[ix] Section 50(2) CrPC

[x] AIR 1997 SC 2447.

[xi] Ibid.

[xii] AIR 1979 SC 1369.

[xiii] P.N. Bhagwati, Human Rights in the Criminal Justice System, pg.310.

Pardoning Powers of President and Governor
Judicial Process: an Instrument of Social Ordering in India

Leave a Comment

Your email address will not be published. Required fields are marked *