Undertrial Prisoners in India- Explained Pointwise

Recently, the Union Home Minister Amit Shah has called for the release of undertrial prisoners who have spent more than one-third of the maximum prescribed sentence for the crimes they are accused of committing, before Constitution Day (November 26). Shah emphasized the need for the release of undertrial prisoners to ensure that no such prisoner remains in jail without receiving justice.

What is the status of Undertrial Prisoners in India?

India’s prisons are heavily overcrowded with undertrial prisoners.

a. According to the National Crime Records Bureau (NCRB) Prison Statistics India 2022 report, out of the 5,73,220 total incarcerated prisoners, 4,34,302 (75.8% of the total prison population) were undertrials.

b. Out of the 23,772 women prisoners, 18,146 (76.33% of the total women prisoners) are undertrials.

c. 8.6% of undertrials have been in prison for over three years (long-term undertrials).

What are the bail provisions under the BNSS for Undertrials in India?

Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, introduces new bail provisions, building on the standards previously outlined in Section 436A of the Code of Criminal Procedure (CrPC), 1973.

What other safeguards are in place for the protection of Undertrials?

Constitutional Safeguards

Supreme Court Judgements

International Safeguards

What are the reasons for high number of Undertrials in India?

1. Low Capacity of Judicial System- India has 21 judges per million population, while the Law commission has recommended 50 per million. This along with lack of infrastructure results in large pendency of cases which now has reached over 4.5 crore cases.

2. Poor Economic and Education Levels- A large number of under trials are poor, illiterate, belonging to the marginalized communities. This along with lack of financial resources leads to inability to get legal aid and pay the bail amount.

3. Unnecessary Arrests and Issues of Bail System- Law Commission (268th Report) has highlighted that over 60% of arrests are unnecessary. The Commission report also highlighted that the rich and the affluent get bail with ease. However, poverty becomes the reason for incarceration of many prisoners, as they are unable to afford bail bonds or provide sureties.

4. Delay in Investigation- Investigation and trial process is often delayed by police and prosecution functionaries. This is due to poor ‘Police-Population’ Ratio. According to PRS, the sanctioned police strength was 181 police personnel per lakh persons in 2016, the actual strength was 137. The United Nations recommended standard is 222 police personnel per lakh persons.

What are the problems faced by Undertrials?

1. Prison Violence- Prisoners are vulnerable to violence. Group violence is also endemic and riots are common.

2. Criminalizing effect of Prison- There is absence of scientific classification methods to separate hardened criminals/convicts from young, first-time new criminals. Intermingling exposes circumstantial/young offenders to hardcore criminals making them vulnerable.

3. Health Problems- Overcrowding of prisons leads to shortage of adequate space to lodge prisoners in safe and healthy conditions.

4. Mental Health Issues- Long incarceration without conviction, especially when the undertrial eventually turns out to be innocent, leads to mental health issues. Moreover, there is lack of facilities to deal with mental health issues in prisons.

5. Drug Abuse- People booked under anti-drug laws constitute a substantial percentage of the prison population. Isolation inside prison leads to increased desperation to access banned substances. It also increases the danger of other prisoners being inducted into drug abuse.

6. Effect on the Families- Many prisoners are sole breadwinners for their families. Arrest and incarceration leads to loss of income and susceptible to poverty. Also, social stigmatization post release impact the ability to get employment. Often it leads to juvenile delinquency among suffering families.

7. Violation of Rights- The ‘Right to Speedy Trial‘ was recognized by the Supreme Court in Hussainara Khatoon vs. Home Secretary, State of Bihar (1979). Prolonged incarceration without bail violates the right. The ‘Right to Bail‘ is denied. Even in bailable offences, many prisoners continue to be in prisons due to exorbitantly high bail amount. ‘Right to Effective Legal Aid‘ is violated due to absence of adequate support.

What should be done to address the problem?

Prisoners

(a) Undertrials should be housed in open jails, where they can move around freely and earn a living, to reduce the punitive character of incarceration. They can be provided greater opportunity to communicate with families
(b) Undertrials should also be compensated, upon release/acquittal
(c) Steps should be taken for their rehabilitation after release, by providing them with self-employment skills, educational and vocational training etc.

Government

(a) A comprehensive Bail Law should be enacted to curb arbitrary arrests. There is a need to revamp outdated prison laws like the Prisons Act, that provide for penalties like fetters, solitary confinement etc. for prison offences, which have been held to be violative of the Constitution
(b) Police functions should be separated into investigation and law and order duties and sufficient strength should be provided to complete investigations on time and avoid delays
(c) To counter discrimination, prejudice and bias in the police, sensitisation programmes and workshops should be introduced
(d) The issue of judicial vacancies should be addressed on an urgent basis. The number of judges should be increased.

Judicial Processes

(a) Aid to Undertrials- Access to free legal aid shall be provided to under trials through NALSA by increasing its capacity and reach.
(b) Automatic extension of remands should be stopped
(c) Video conferencing between jails and courts should be encouraged and tried in all states beginning with the big Central jails and then expanding to District and Sub-jails
(d) The practice of lower judiciary to grant adjournment of hearings on arbitrary grounds should be curbed. A big cause for pendency is arbitrary adjournments delaying court proceedings
(e) Computerization of Court procedures can help manage pendency.