LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


The criminal procedure that is instituted for criminal cases in India can be broadly categorized under three well-known stages. They are pre-trial, during the trial and post-trial stages. All three of the aforementioned contribute to the securing of justice in their own ways. An ‘accused’ becomes a ‘convict’ only, and only when s/he has been decided to have committed the crime by the respective judges after a thorough trial. However, the lines that define an accused is never as clear-cut as it can seem from above. There are innumerable twists and turns which limit the ease at which one can easily put a person into either the guilty or innocent box.

Such a concept is what an under-trial prisoner is. An under-trial prisoner is someone who has been put behind bars during the process of trial in a competent court, due to various reasons. Unfortunately, instead of benefitting society, the accumulating number of under-trial prisoners is one of India’s foremost problems today.


The difference between under-trial prisoners and normal prisoners are that the former are essentially in jail for something that they are still not ‘guilty’ for. Now, the purpose for which these accused people are locked up is due to the fact that –

  • India is a country that religiously follows the principle of “fair trial” and therefore, prevents the accused from inducing or forcing the witnesses to testify in the former’s favor.
  • There is a good chance that the accused would not turn up for trial.
  • The accused is charged with offences that are of a grave nature.

This type of detainment, is, theoretically, only used in circumstances where the justice system has the highest suspicion that the accused can harm or influence the witnesses if left in the open. Unfortunately, in practicality, Indian prisons seem to showcase the exact opposite. According to the National Crime Records Bureau (NCRB) prison statistics of India 2016, the under-trial prisoners account for two out of every three people jailed.  This points to the fact that jails in India today do not have the optimum capacity to house any prisoners.

Moreover, our nation is particularly ill-famed for the slow pace of our justice systems. This paves the way for the delay in trials due to the lakhs and lakhs of case backlogs pending in our country. That is why one of the most basic human rights issue that pertains to these prisoners is this lengthy judicial process that often takes entire lifetimes to even start. 


The Standard Minimum Rules for the Treatment of Prisoner, adopted by the First United Nations Congress on Prevention of Crime and Treatment of Offenders (Geneva, 1955) was one of the first internationally recognized documents that laid out the rights of prisoners. It also gives incredibly detailed information regarding the treatment of undertrial prisoners. Some of the sections are as follows that correlate with the aspect of international human rights of undertrial prisoners –

  1. Rule 86 – Undertrial prisoners should be given separate rooms to reside from the normal prisoners.
  2. Rule 87 – Undertrial prisoners have a choice to arrange for their food from outside, either through the administration or through their loved ones.
  3. Rule 88 – These prisoners are usually allowed to wear the clothing of their choice.
  4. Rule 89 – An undertrial prisoner has a choice to work or not, depending on the whims of the prisoner. If the prisoner does choose to work, he will be paid.

The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment(adopted by the General Assembly of UN in 1988) also gives certain privileges to these prisoners by assuming and treating that they are innocent until proven guilty. It also states that any unnecessary restrictions are forbidden to be put on the undertrial prisoners.

The Indian law, along with the above rules, also have their own domestic provisions for securing the rights of undertrial prisoners. The Constitution of India is one prime example of such a provision. It offers the same rights to all types of prisoner; and Article 21 is one of the richest source of these rights.

Where undertrial prisoners are concerned, Right to Speedy Trial is considered the most important. In the extremely famous case of Hussainara Khatoon v. State of Bihar, it was held that a procedure that is designed to restrict a person’s liberty will not be ‘fair’ unless it ensures a speedy trial for that procedure.

Similarly, the Code of Criminal Procedure, 1973, states that:

In every inquiry or trial, the proceedings shall be held as expeditiously as possible


However, such human rights are not being adhered to at all. The percentage of such detained prisoners have only been steadily increasing in the past years. The reasons for these are –

  • Grossly inadequate proportions of judges in relation to the piling cases.
  • Lack of coordination among the various parts of the justice system.
  • Poor legal awareness of the prisoners of their right to seek release, and if they are aware of it, then they are too poor to furnish bonds for bail. Infact, this was reiterated in the case of Common Cause versus Union of India & Others.


What our country is very calmly overlooking is the fact that this severely affects the thousands of innocent people physically, mentally and emotionally. India is also unfortunately mostly a patriarchal society. Therefore, in a majority of cases, when the breadwinner is absent from the family, it leads to destitution. The other members would also be subjected to ridicules and social stigmatizations.

Section 167 of the Code of Criminal Procedure, especially, should be very strictly interpreted and executed, as it lays down the maximum time-limit within which investigation should be completed and charge-sheet should be submitted to the court.

Indigent families of the prisoners can also be helped by –

  • Allowing to avail basic goods and services at a reduced rate,
  • Giving a certain amount of money on timely intervals as long as the breadwinner is behind bars,
  • Providing jobs to the other competent members of the family, etc.


More than 50% of today’s prisoners are ones who are undertrial. Despite various measures, these people are still mistreated, which constitutes a major human rights issue in today’s world. Therefore, the authorities need to strictly implement the already existing provisions in order to ensure that the undertrial prisoners are not robbed off of their dignity which is given under A.21 of the Constitution.

"Loved reading this piece by Karishma Yadav?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"

Tags :

Category Criminal Law, Other Articles by - Karishma Yadav