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Under-trials in India: Convicted before conviction

Published: 22nd Feb, 2022


Deterioration of prison conditions and the prisoners during the pandemic due to lockdown.


  • The onset of corona pandemic and the lockdown imposed due to it, caused overcrowding and humanitarian crisis in the prisons of India.
  • This problem is said to have arisen due to mass incarceration of pre-trial prisoners and lack of reforms that could resolve the above issue are back in focus.


Reasons for high under-trial population in India’s prisons-

  • Delay in conducting trials. This is despite the fact that Right to Speedy investigation and trial is established to be a fundamental right under Article 21 of the Indian Constitution.
  • Inability of many under-trials to furnish the bail amount or present surety. The primary reason behind this is the socio-economic condition of the most undertrials.
  • Most undertrials in India belong to socially and economically vulnerable category and furnishing a bail or surety is beyond their capacity.
  • Majority of undertrials in India are illiterate and hence lack awareness of their rights. Including the right to legal aid.
  • Lack of police personnel to escort the under-trails to court. This leads to a situation where the hearing of bail petition of the undertrial gets adjourned for no fault of his.
  • The above reasons make difficult for an undertrial even when the Indian Legal System, in letters, has promoted that “Bail and not Jail is the rule”.

Statistics of undertrials in India:

  • In India, about 70% of prison inmates are under trials.
  • The above number simply means that more than 2/3rd locked of those locked in the prisons of India have still not been convicted of the offence they are accused of.
  • The prison statics of 2020 also showed that nearly 70% of this under trials belong to marginalized caste, class, religions and genders.

Challenges faced by undertrials in prison:

  • Prison violence: Jails are commonplace for violence between prisoners or gang-wars. Many first time inmates are caught in these violent incidences.
  • First time prisoners are also subject to violence by the harden criminals in prison.
  • Criminalizing effect of a prison: With hardened criminals being around and in the absence of scientific classification methods to separate them from others, contamination of first time, circumstantial and young offenders into full-fledged criminals occurs very frequently.
  • Health Problems: Most of the prisons face problems of overcrowding and shortage of adequate space to lodge prisoners in safe and health conditions. Most of the prisoners found in prisons come from socio-economically disadvantaged sections of the society where disease, malnutrition and absence of medical services are prevalent.
  • When such people are cramped in with each other in unhealthy conditions, infectious and communicable diseases spread easily.

What problems were faced by prisoners during the lockdown?

  • Prisons got even more overcrowded due to continuous influx of under trials into the jails but stoppage on their release due to lockdown.
  • Addition of new under trails to jail caused increase in the unhygienic conditions in prison.
  • Lack of vaccination for the occupants of prisons. Contributed to the rise and spread of Covid in the prisons of India.
  • Visit of prisoners to Court have been suspended. Thus, automatically extending their stay in jail.
  • Visits by the lawyers and family members of the inmates have been stopped due to the fear of spread of Corona virus.
  • It can also be concluded from the data of National Crime Records Bureau that the number of those dying in prison has been going up.

What were the efforts taken to decongest the prison during the lockdown?

  • By the orders of Supreme Court of India, every state of India established a High Powered Committee to decongest prisons.
  • The decision to decongest the prisons was taken considering the health and right to life of prisoners and jail authorities.

How did the HPCs fair?

  • The performance of HPCs, in their task of decongesting the prisons was below par.
  • The 2020 Prisons Statistics Report supports the above statement with two datas-
    • It reveals that as compared to 2019, “the release of convicts has declined by 41.2 per cent and the release of undertrials has declined by 19.6 per cent” in 2020.
    • Second, as compared to 2019, “the number of undertrial prisoners increased by 11.7 per cent and the number of detenues increased by 11.4 per cent” in 2020.
  • HPCs treated this as administrative issue and not a humanitarian one can be considered to be the reason for this state of affair.

What the HPCs needs to do?

  • The HPCs need to shed their bureaucratic approach and during the time of pandemic view the issue of prison overcrowding from the point of view of public health.

Recommendation for overall reforms that would better the situation of under-trials:

  • Undertrial prisoners should be lodged in separate institutions away from convicted prisoners.
  • There should be a proper and scientific classification even amongst the undertrials to ensure that the first timers and petty offenders do not mix up with full fledge and hardcore criminals.
  • Institutions meant for lodging undertrials should be as close to the courts as possible.
  • Video conferencing between jails and courts should be encouraged and tried.
  • Jail visits by the members of judiciary should be more frequent so that the conditions of undertrails can be supervised at regular intervals.
  • With undertrial prisoners, adjournments should not be granted unless absolutely necessary.
  • There should be a progressive and massive decriminalisation of offences so that many of the wrongs, which now have the status of crimes, are dealt with as compoundable offences which are remediable with compensation.
Compoundable offence is the one in which settlement mechanism exists by which, the offender is given an option to pay money in lieu of his prosecution to avoid prolonged litigation.

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