Prisoners UNDER trail

Prisons and their administration are a state subject in India, as defined by item 4 of the State List in the Constitution's Seventh Schedule. Prison management and administration are exclusively the responsibility of the state governments and are governed by the Prisons Act of 1894 and the individual state governments' Prison Manuals. “The history of jails in India and elsewhere clearly shows changes in society's response to crime throughout time. The prison system is an odd amalgamation of several punitive goals. Thus, prison may serve to deter the offender or it may be used as a method of retribution or vengeance by making the life of the offender miserable and difficult.”

The federal government assists states in improving prison security, rebuilding and renovating old jails, improving medical services, establishing borstal schools, providing facilities for female inmates, vocational training, modernising prison industries, training prison officers, and constructing high-security enclosures. “Three fundamental principles pertaining to imprisonment and detention have been articulated by the Supreme Court of India in its judgements on various elements of jail management. Firstly, an inmate does not become a non-person in jail. Secondly, under the limits of incarceration, a person in prison is entitled to all human rights.” “It is important to remember that various punishments are to be dealt with by prison prisoners because universal punishment can hardly serve the interests of justice for any of them. As a result, inmates must be divided into various groups based on the severity of their crime and the duration of their sentence. A pre-condition for an optimal penal program is the proper classification of criminals for the purpose of treatment.


At the end of 2019, more than one lakh people were lodged in Indian Prisons as undertrials for more than a year. An undertrial is an unconvicted prisoner who is on trial in a court of law. The share of undertrials lodged in prisons for more than a year has increased over time as the percentage of cases pending judgment in courts has also increased sharply. The number of people lodged in Indian prisons as undertrials increased at a faster rate between 2001 and 2019 than those convicted. At the end of 2019, 3.28 lakh prison inmates were undergoing trial, while 1.42 lakh were convicted.

Years Passed, But Indian Prisons Stayed the Same – Statistics

As per Prison Statistics India 2019, a report released by the National Crime Record Bureau (NCRB), there are a total of 1350 prisons in India. In 2019, the capacity of prisons increased by 1.90% but the number of prisoners increased by 2.69%, as compared to 2018. Thus, the occupancy rate increased from 117.6% to 118.5% between 2018 and 2019. This rate has been quite consistent over the years. The high occupancy rate indicates the problem of overcrowding in prisons. This is due to the large number of undertrial prisoners. India ranks 15th out of 217 countries on the basis of its undertrial population. Undertrial prisoners formed 70% of the total prison population in 2019. This number has been consistently high, at an average of 66.97% over the past years. The number of undertrial prisoners increased by 2.15% between 2018 and 2019; of these, only 91 were civil inmates. As per the Prison Report, many undertrials languish in jails for several years. 74.08% of undertrials were confined for up to 1 year, 13.35% for 1-2 years, 6.79% for 2-3 years, 4.25% for 3-5 years and 1.52% of undertrials were confined for more than 5 years.

Shocking Incidents

Stan Swamy - Stan Swamy’s case is symptomatic of a larger problem: Keeping undertrial prisoners (UTPs) in jail by default. The National Crime Records Bureau’s Prison Statistics Report 2019 shows that UTPs comprise 69.05% of all inmates of India’s prisons. On July 5, 84-year-old Stan Swamy died in hospital, far from his home and the community he tirelessly worked for. For eight months, he had suffered slowly in jail. Visibly unwell and battling Parkinson’s, he had requested the Bombay High Court (HC) to allow him to go home to “be with my own”. He was not yet charged with, let alone convicted of, any crime — only accused of having vague links to a terrorist conspiracy. Still, he was repeatedly denied bail until the inevitable came to pass.

Mohd. Amir Khan –

Mohammad Amir Khan gets solatium from Delhi Police after NHRC takes up issue

“Rupees five lakh can’t buy my 14 years back, but it can help me provide a better education to my daughter who is just four-year-old,” said Mohammad Amir Khan, who was acquitted in 18 terror cases in January 2012, after spending 14 years in jail. As per his wording “I was 18-year-old when I was picked up by the Delhi Police in December 1997. I was tortured and forced to sign several blank papers. The police had charged me in 18 terror cases. The trials began, but one after another I was acquitted in all the cases,” said Mr. Khan, who lives with his wife and daughter in Jamia Nagar. The trials, however, took 14 years to get resolved, during which time Mr. Khan lost his father and due to the shock, his mother suffered a brain haemorrhage. After prolonged illness and being bedridden, she died in 2015, said Mr. Khan. The National Human Rights Commission (NHRC) took up his case suo motu based on media reports in 2014 and for the next four years it relentlessly fought for compensation for his wrongful confinement.

Cases –

Hussainara Khatoon and Others

In this case the issue raised was that the condition of undertrial prisoners is not so good in the jail. They have to undergo jail term for a period more than their original term therefore, the writ petition was filed for the same and the court took cognizance of offence and also mentioned 6 months of investigation of the prisoners and if they fail, they have to file the reason for the same.

Kadra Pehadiya And Ors. vs State of Bihar on 17 December, 1980

In the famous Pehadiya case, the Bench noted that the crisis of undertrials in India describes the instance of the utter callousness and indifference of the legal and judicial system towards the prisoners languishing for unending years in the jails. “It seems that once a person accused of an offence is lodged in the jail… he becomes a mere forgotten specimen of humanity alienated from the society, an unfortunate victim 75 of a heartless system.”


Reforms needed in criminal justice system –

Criminal law is considered to be the most apparent expression of the relationship between a state and its citizens. Therefore, any revision to the CJSI needs to be done while keeping several principles in mind, which are described below:

· The reason for victimization ought to be given a major thrust in reforming laws to identify the rights of crime victims.

o For Example: Launch of victim and witness protection schemes, use of victim impact statements, increased victim participation in criminal trials, enhanced access of victims to compensation and restitution.

· The construction of new offences and reworking of the existing classification of offences must be guided by the principles of criminal jurisprudence which have substantially altered in the past four decades.

o For Example: Criminal liability could be graded better to assign the degree of punishments. New types of punishments like community service orders, restitution orders, and other aspects of restorative and reformative justice could also be brought in its fold.

· The classification of offences must be done in a manner conducive to management of crimes in the future.

o Many chapters of the IPC are overloaded at several places. The chapters on offences against public servants, contempt of authority, public tranquility, and trespass can be redefined and narrowed.

· Guiding principles need to be developed after sufficient debate before criminalizing an act as a crime.

o Unprincipled criminalization not only leads to the creation of new offences on unscientific grounds, but also arbitrariness in the criminal justice system.

· The discretion of judges in deciding the quantum and nature of sentence differently for crimes of the same nature should be based on principles of judicial precedence.

Need of Prisons reform to make condition better –

· Pre-trial detention has become the particular source of injustice in the Indian justice system, this is majorly because of lack of legal services to the undertrials.

It is high time that the access to legal aid (which is a directive principle to state policy under Article 39A) should be made a fundamental right.

· Undertrials should be released on Bail: In 2017, the Law Commission of India had recommended that undertrials who have completed a third of their maximum sentence for offences attracting up to seven years of imprisonment be released on bail.

· Unified prison management system: There should be a unified prison management system that has records of all inmates so they don’t have to run from pillar to post for copies of documents like court orders. The project has been recommended by NALSA as well. Also, this project has worked well in Delhi’s Tihar jail.

· Capacity building of prison staff: It is of paramount importance that the prison staff is trained in how to treat and deal with inmates.

The Supreme Court, in September 2017, has directed that there should be proper training manuals for senior staff.

· Post-release financial security for prisoners: Wages that are paid to prisoners who are serving sentences should be increased and should be on par with global benchmarks. So that when they come out, they have some better finances.

Way Forward

The life of an under-trial prisoner is widely known to anybody who is familiar with our country's criminal justice system. Many times, even if they are not convicted of the alleged crime, inmates spend vital years of their lives in prison while their case is pending, and the most painful moment is when they are acquitted by a court of law after years in prison. Under-trial detainees are the most impacted persons in the criminal justice system since they are forced to live their lives in the same way as convicted detainees do, causing them great mental anguish and emotional misery.

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