Undertrials

What is 'Undertrial'

An undertrial is a person who is currently on trial or who is imprisoned on remand whilst awaiting trial or a person who is on a trial in a court of law. While the correct legal term for a person awaiting trial and in prison (judicial custody) is undertrial prisoner, the term undertrial is popularly used to denote undertrial prisoner.

Also, sometimes, the term undertrial is used as two separate words – under trial. For example the Supreme Court mandated Under Trial Review Committee used it as two words.

For statistics, the term 'undertrial prisoner' in India generally includes pretrial/remand prisoner. The term 'untried prisoner' is also used to mean undertrial prisoner.

As of 2020, India ranked 15 out of 217 countries on the basis of its undertrial population as per the World Pre-trial/Remand Imprisonment List.

Official Definition of 'Undertrial'

‘Undertrial’ as defined in legislation(s)

The Model Prison Manual (2016) defines 'Under-trial prisoners' as ‘a person who has been committed to judicial custody pending investigation or trial by competent authority’. Similar definition is provided in State Prison rules. example- Karnataka Prisons Rules 1974, ‘“Under trial prisoner” means a person who was been committed to prison custody pending investigation or trail by a competent authority’

The Model Prison Manual soughts to create a distinction between the undertrial prisoner and remand prisoner by defining Remand Prionser as 'a person who has been remanded by court to prison custody, pending investigation by the police.

• Bombay Jail Manual describes that ‘undertrial' and 'awaiting trial' are synonymous terms and refer to persons committed to prison while the charge against them is under judicial investigation’

‘Undertrial’ as defined in official government report(s)

• The 78th Report of the Law Commission of India (1979) defines 'undertrial' in wide sense, even to include person who are in judicial custody or remand during investigation.

• The Prison Statistics Report (PSI) defines Undertrial Prisoner as ‘any person who has been committed to judicial custody and against whom a criminal trial has been initiated by a competent authority (trial is yet to start or is in process, but not yet disposed off).

‘Undertrial’ as defined in other official documents.

• NALSA’s SOP for UTRC’s: Under Part I (Definitions) of NALSA’S Standard Operating Procedure (SOP) for UTRC’s, “UTP’s” means Under Trial Prisoners who are in custody at the time of preparation of the list of UTP’s by the Superintendent and includes inmates who are out on interim bail.

Undertrial as defined in other documents

• UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) uses the term Untried Prisoners to denote undertrial and define its as "Individuals arrested or imprisoned due to a criminal charge but not yet tried or sentenced are referred to as "untried prisoners."

Other Legal provisions relating to ‘undertrial’

Relating to Bail

The provisions relating to Bail of undertrial prisoners are stipulated in Chapter - XXXIII of CrPC (Chapter XXXV of BNSS). Know more:Bail

In Bailable cases

Section 436 of CrPC states that bail can be availed, before the police officer or the magistrate as a matter of right if the alleged crime is bailable. It is provided that if the police officer or magistrate believes that the accused is indigent and cannot afford the surety amount, he may release the accused on the execution of a bond without the surety. It is further explained that if the accused is unable to obtain bail within one week of his arrest, the police officer and the court may presume that the person is indigent or poor and may grant bail to such an accused without surety.

Maximum period of Detention

Section 436-A CrPC states that where a person has, during the period of investigation, inquiry or trial under the CrPC of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.

The first proviso states that the Court may, after hearing the public prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties.

The second proviso envisages that no such person shall, in any case, be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Furthermore, the explanatory provision states – In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.

Section 479 of BNSS has substantially modified Section 436-A of CrPC to exclude the category of persons who are accused of offences punishable by death or imprisonment for life.

The BNSS has introduced a new provision under section 479(1) for first-time offenders allowing release on bond if the detention period is up to one-third of the maximum imprisonment period. Furthermore, Section 479(2) of BNSS explicitly states that individuals facing multiple offences will not be released on bail. Section 479(3) casts a duty on the Superintendent of Jail to promptly submit a written application to the Court to proceed under section 479(1) for the release of the person on bail, upon completion of one-half or one-third of the specified detention period.

The Government of India, on multiple occasions, has also released advisories in pursuance of Supreme Court directives like Use of Section 436A of the Cr.P.C to reduce overcrowding of prisons on 17.01.2013 and Guidelines on reckoning half-life of time spent in judicial custody of Under-trial prisoners under Section 436A of Cr.P.C on 27.09.2014 to reduce overcrowding in prisons.

Prison Manuals

The rights of Undertrial prisoners are enumerated in the respective state prison manuals. For illustration, Chapter XXIV of Model Prison Manual outline the classification, admission, and treatment of undertrial prisoners based on security concerns, categorizing them into three groups. The document also addresses food and clothing allowances, emphasizing fair treatment and avoiding discrimination based on social status. Undertrial prisoners are permitted to write four letters per month, two at their cost and two at government cost. Interviews with legal advisers and family members are allowed, and the guidelines specify the conditions for the use of handcuffs, search procedures, and transport arrangements for court appearances. The document also addresses disciplinary measures, work assignments, and the release process, including the handling of bail bonds and release orders. A daily routine and program for undertrial prisoners are outlined, along with special considerations for women undertrial prisoners and procedures for handling serious illnesses or deaths within the prison.

Undertrial as defined in 'Caselaws'

• In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, the Supreme Court issued certain guidelines to counter the unfair bail system. Firstly, if an undertrial prisoner was accused of an offence where the imprisonment is up to 5 years, he should be released if he has completed half the sentence. Secondly, if the undertrial was accused for an offence of more than 5 years, then a minimum of Rs. 50,000 as bail amount was to be laid out. Thirdly, if the undertrial was accused for an offence of more than 10 years, he should be released after providing Rs. 1 lakh as bail amount and serving a sentence of 5 years.
• In Common Cause v. Union of India, the Supreme Court held that an undertrial accused of an offence punishable with imprisonment for up to three years, who has been in jail for a period of more than six months, punishable with imprisonment for up to five years, has been in jail for more than six months or punishable with imprisonment for up to seven years, has been in jail for more than one years, should be released on bail. The court further directed that the accused should be discharged or acquitted if the offence is non-cognizable and bailable and the trial is pending more than two years, or offence is punishable with only fine and trial is pending for more than two years, or if the offence is punishable with imprisonment of up to one year and trial has not commenced within a year.
• In Hussain & Anr. vs. Union of India & Ors., the Supreme Court ordered for the conclusion of the cases at earliest where 5 years have already passed by in either of the high court or any subordinate court and supplemented the Section 436A of Cr.P.C. that if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time.
• In Phool Kumari v Office of Superintendent, Central jail, New Delhi, the court affirmed that undertrial prisoners are not required to do any work in prison.
• In Bhim Singh v. Union of India, the Supreme Court (SC) issued a series of directives to state authorities to facilitate the release of undertrial prisoners who have served half of their probable maximum prison term. While the directive is largely a reiteration of earlier judicial measures (SC Legal Aid Committee v. Union of India; Rama Murthy v. State of Karnataka), it is highly significant in that the SC set a deadline two months-and directed district judges and prison officials to oversee the process.
• In Satender Kumat Antil v. CBI (Antil-3) , Regarding the general bail jurisprudence, the court reiterated its various earlier decisions. The court has also clarified that bail applications should be disposed off within a period of two weeks and anticipatory bail applications within six weeks.
• In Re Policy Strategy for Grant of Bail, the Supreme Court (SC) guidelines on the issue of undertrial prisoners who continue to be in custody despite having been granted the benefit of bail on account of their inability to fulfil the conditions stipulated in the bail order or otherwise. The Supreme Court observed that one of the reasons which delays the release of the accused/ convict is the insistence upon local surety. The court directed that in such cases, the courts may not impose the condition of local surety.” if the bail bonds are not furnished within one month from the date of grant bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/ relaxation.

Types of Undertrial Prisoners

Under Prison Manuals

Some State Jail manuals provided for the classification of undertrial prisoners based on socio-demographic profile. For example, Delhi Jail Manual, for undertrial prisoners, there are two classes: namely (1) those who by social status, education or habit of life have been accustomed to a superior mode of living and (ii) others. The discretion to classify undertrial prisoners is initially with the Officer in Charge of the Police Station. After being brought before the Court, the classification is determined by the court, subject to possible revisional orders from the Sessions Court.

However, Model Prison Manual (2016) clearly stipulates that the classification of undertrial prisoners should be done only on the basis of security, discipline and institutional programme. No classification on the basis of social status should be attempted. The entitlement of diet, clothing, bedding and interview will be the same as applicable to other categories of prison. Undertrial prisoners should be classified as under:

• Category ‘I’: Prisoners involved in terrorist and extremist activities (special security prisoners (limited and with the permission and higher authority)
• Category ‘II’: Dangerous prisoners involved in murders, dacoity, robbery, rape cases, habitual offenders, previous escapes and drug peddlers.

As classified by NALSA in its SOP for UTRC:

Provision 2.2 of NALSA's SOP for UTRC outlines the criteria for reviewing Under Trial Prisoners (UTPs) and convicts by the Secretary, District Legal Services Authority, for presenting them before the Under Trial Review Committee. Based on various Supreme Court orders, the provision

1. Covers UTPs/Convicts under Section 436A Cr.P.C.
2. Includes those released on bail but unable to furnish sureties.
3. Encompasses UTPs accused of compoundable offences.
4. Involves UTPs eligible under Section 436 of Cr.P.C.
5. Addresses specific categories such as convicts, women offenders, first-time offenders aged 19-21, and UTPs with unsound minds.
6. Considers UTPs eligible for release under Section 437(6) of Cr.P.C. due to trial delays.

Civil Undertrial Inmates:

According to the Prison Statistics Report, Among the 4,27,165 undertrial prisoners in the country (as of 2021), 53 were civil inmates. The report further provides that only 11 states have reported lodging of civil prisoners in their jails. A civil prisoner is defined in Model Prison Manual as any prisoner who is not committed to custody under a writ, warrant, or order of any court or authority exercising criminal jurisdiction, or by an order of court martial and who is not a detenue.

International Instruments

According to the Standard Minimum Rules for the Treatment of Prisoners Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, the following has been mentioned about prisoners under arrest or awaiting trial.

The provided rules (Rule 84 to Rule 93) establish a framework for the treatment and rights of untried prisoners, defined as those detained without having been tried or sentenced. It stipulates that untried prisoners are entitled to a special regime, and the subsequent rules outline essential requirements for their treatment. some of these rules include-

• Separation from Convicted Prisoners: Untried prisoners must be kept separate from convicted prisoners. Separation of Young Prisoners: Young untried prisoners should be kept separate from adults and, in principle, detained in separate institutions. Sleep Arrangements: Untried prisoners shall sleep singly in separate rooms, with considerations for local climate customs. Food Procurement: Untried prisoners may, if they wish, have their food procured at their expense from the outside, either through the administration or their family/friends. Otherwise, the administration provides their food. Clothing: Untried prisoners may wear their clean and suitable clothing. If they wear prison dress, it should differ from that provided to convicted prisoners. Work Opportunities: Untried prisoners shall be offered the opportunity to work, but it is not mandatory. If they choose to work, they should be paid. Access to Occupation Materials: Untried prisoners can procure books, newspapers, writing materials, and other means of occupation at their expense or a third party's expense. Medical Treatment: Untried prisoners can be visited and treated by their own doctor or dentist if they can pay the expenses. Communication with Family: Untried prisoners are allowed to inform their family of their detention and receive visits and communication, subject to necessary restrictions. Legal Aid: Untried prisoners can apply for free legal aid, have visits from legal advisers for defense preparation, and receive confidential instructions. They may be supplied with writing materials, and interviews with legal advisers should be confidential.

Appearance of ‘Undertrial’ in Official Database

Prison Statistic Report

categorises undertrial prisoners as a person who is currently on trial in a court of law. The report presents data under the following heads:

1. Jail-wise & State/UT–wise Distribution of Undertrial Prisoners in Different Types of Jails
   
2. Demographic Profile (Education and Domicile)
   

   Demographic Profile (Education)
   

   Demographic Profile (Education)
3. 

   Age Group
4. Female undertrial prisoners and Women with children
   

   Female Undertrial Prisoners
   

   Undertrial Prisoner -Women with children
5. Religion & Caste
   

   Religion
   

   Caste
6. Under different Crime
   

   UTPs by types of Offences
   
   
   
7. Different types of releases
   

   Reason for release of Undertrial Prisoners
   

   Release under 436A

National Judicial Data Grid (NJDG): 

Prison Management System

gives primary details about the prisoner and the basis on which the classification of the prisoner has been done. It can be accessed only by the prison official.

Research that engages with Undertrial Prisoners

• Bail and Incarceration: The State of Undertrial Prisoners in India

Bail and Incarceration: The State of Undertrial Prisoners in India by Aparna Chandra and Keerthana Medarametla, published in Approaches to Justice in India: A Report by DAKSH (2018) examine the state of undertrial prisoners in India, using data from crime and prison statistics released by the National Crime Records Bureau. They find that despite various interventions and reforms introduced by the legislature and judiciary, the extent and duration of undertrial incarceration amongst prisoners is not only on the rise, but also that it has a disproportionate impact on the most socio-economically vulnerable sections of society. The authors argue that judicial and legislative measures have failed because of lack of sustained and systematic institutionalisation. They conclude that a systemic re-imagination of bail law is needed for a true ameliorative impact on the state of undertrial prisoners in India.

• Justice Under Trial: A study of pre-trial detention in India

Justice Under Trial: A study of pre-trial detention in India a study published by Amnesty International India, (2017) assessed the effectiveness of legal safeguards relating to undertrial detention in India. It relied on data collected through RTI applications relating to the implementation of section 436A of the Code of Criminal Procedure (CrPC), the rate of production of undertrials in court for their hearings, the adequacy of legal aid provided, and adherence to guidelines on undertrial detention issued by the Union Home Ministry in 2005. The report then proposes a wide range of recommendations to tackle the issue.

• “The Lost Souls”: A Study of Undertrial Prisoners in Karnataka and the Provision of Legal Aid

“The Lost Souls”: A Study of Undertrial Prisoners in Karnataka and the Provision of Legal Aid, a study published by The Centre for Competition Law and Economics (2019). This study tries to understand the status of undertrial prisoners in Karnataka and its situation when compared to the national average. In addition to it, the study also tries to analyze the change in the population of undertrial prisoners under various categories in the last 10 years and tries to explore the provision of legal aid for these undertrial prisoners and its status in the State of Karnataka.

• Legal Aid to Undertrial Prisoners in Maharashtra: A Socio-legal Intervention Model in the Criminal Justice System

Legal Aid to Undertrial Prisoners in Maharashtra: A Socio-legal Intervention Model in the Criminal Justice System is a study prepared by Prayas, a Field Action Project of Tata Institute of Social Sciences (TISS), Mumbai, Maharashtra. Prayas conducted a project on legal aid and bail for undertrial prisoners from May 2018 to October 2021 across six prisons in Mumbai, Thane, Latur, and Raigad districts of Maharashtra. The initiative aimed to provide free legal aid, facilitate bail, and enhance legal aid mechanisms in these districts. Drawing on data from Management Information System (MIS) and qualitative insights from internal reports and interactions, the report highlights the challenges faced by undertrial prisoners with marginalized backgrounds in accessing legal aid. It emphasizes the roles of social workers and lawyers in securing bail and offering post-release support, presenting statistics on applications, bail granting, and modifications. The innovative project forged government partnerships, advocated procedural changes, and demonstrated a successful 'socio-legal model' in the criminal justice system. The report concludes with recommendations to alleviate prison overcrowding, emphasizing the importance of criminal justice social work and trained social workers to rehabilitate marginalized groups, emphasizing holistic socio-legal interventions for undertrial prisoners.

• Prisons, Courts & Legal Aid: Experience of the Fair Trial Programme in Maharashtra

Prisons, Courts & Legal Aid: Experience of the Fair Trial Programme in Maharashtra is a report by the Project 39A and Fair Trial Fellowship, NLU, Delhi. The report presents its learnings from January 1st, 2019, to March 31, 2021. Data collected identified deep rooted issues in the delivery of legal aid to the undertrials. This report is aimed at providing socio-legal aid to the undertrial prisoners in Pune and Nagpur in specific. Findings of the report provide information on the structural barriers within in the criminal justice system and the shortcomings of the state sponsored legal aid system and demonstrates empirically verifiable trends which have emerged from its work and reflect on them to draw lessons for improving the functioning of the legal aid system.

• “State Legal Aid and Undertrials: Are There No Takers?”

“State Legal Aid and Undertrials: Are There No Takers?” is a paper written in 2022 by Anup Surendranath and Gale Andrew and posted in the Indian Law Review. This article addresses the underutilization of legal aid services among prisoners in India, shedding light on a significant issue within the legal aid system. The data, covering the period from 2016 to 2019, indicates that only 7.91% of undertrial prisoners availed the legal aid services that they were entitled to. The underutilization raises concerns about the efficacy of India's legal aid system, particularly when considering the socio-economic vulnerability of prisoners. However, the article notes that the existing data does not provide insights into the reasons behind this underutilization, leaving questions about whether it stems from a lack of awareness or if socio-economically vulnerable undertrial prisoners are opting for alternative options despite being aware of free legal aid.

• Legal Representation for Undertrials in Maharashtra

“Legal Representation for Undertrials in Maharashtra” is a detailed report with findings from 2018-2021 written by Dr. Anup Surendranath, Medha Deo, Dr. Vijay Raghavan, Sharli Mudaliyar, and Saugata Hazra with input from Devyani Kacker and Anil Ramaprasad. The Azim Premji Foundation, in collaboration with the Government of Maharashtra, initiated a program to address the challenges faced by undertrials in the state's prisons. The primary objectives were to tackle overcrowding, provide quality legal representation, and address the socio-economic vulnerabilities of undertrials. The program involved partnerships with organizations like Prayas, the Fair Trial Fellowship Program and Project 39 A of NLU Delhi, and TISS. The program aimed to address these issues by providing legal aid and bail support, engaging social work and legal fellows, and collaborating with prison authorities and District Legal Service Authorities. The report highlighted the need for comprehensive legal aid services, the reduction of overcrowding, and the mitigation of socio-economic vulnerabilities among undertrials. It emphasized the importance of effective legal aid in ensuring fair trials and called for improvements in the utilization of legal services.

• Study on Functioning of Undertrial Review Committees - From April to June 2020

Study on Functioning of Undertrial Review Committees - From April to June 2020 is a report written by Siddharth Lamba, edited by Madhurima Dhanuka and Deepan K Sarkar. The report investigates the functioning of Under Trial Review Committees (UTRCs) in India during the April to June 2020 period, prompted by the COVID-19 pandemic. Directed by the Supreme Court to meet weekly, UTRCs aimed to expedite prisoner releases and mitigate prison overcrowding. The analysis, based on information from State Legal Services Authorities (SLSAs), underscores the broader UTRC mandate, encompassing compliance with Supreme Court directives on speedy trials and Model Prison Manual implementation. The study, employing data from 18 SLSAs, emphasizes the pivotal role of UTRCs in reviewing prisoner cases and collaborating with High Powered Committees for prison decongestion during the pandemic, presenting findings and recommendations integral to understanding the comprehensive scope of UTRCs.

• Extracts from Circle of Justice, A National Report on Under Trial Review Committees

Extracts from Circle of Justice, A National Report on Under Trial Review Committees is a report researched and written by Sugandha Shankar: edited by Maja Daruwala and Sana Das published by Commonwealth Human Rights Initiative (CHRI) in 2016. This report is the inaugural assessment of the compliance regarding the establishment and operation of Under Trial Review Committees (UTRCs), following the Supreme Court's directive of April 24, 2015, in the case of 'Re-Inhuman Conditions in 1382 Prisons.' Covering responses from 26 States and Union Territories under the Right to Information Act, 2005, for the period of May 2015 to October 2015, it primarily focuses on the original UTRC mandate outlined in the April 2015 order. The UTRCs, comprised of district-level committees, were tasked with periodic reviews of undertrial prisoners, addressing issues of overcrowded prisons and prolonged detentions. The report indicates a mixed and incomplete compliance, citing instances where only 149 out of 357 districts held meetings within three months, with 60 percent non-compliance. While some positive practices are highlighted, gaps in implementation and weak follow-up actions are noted. The report concludes with recommendations for comprehensive UTRC reviews and ongoing attention to address undertrial challenges, emphasizing the importance of sustained efforts to realize the intended improvements in the justice system.

• Deprived of rights over natural resources, impoverished Adivasis get prison

“Deprived of rights over natural resources, impoverished Adivasis get prison” is a study of undertrials in Jharkhand. The research for the study was conducted by the Bagaicha research team and published in 2015. This research study delves into the plight of impoverished Adivasis and Moolvasis in Jharkhand, accused of being Maoists, revealing systemic issues within the criminal justice system. The study highlights the disproportionate targeting of Adivasis, Dalits, and backward castes, emphasizing their vulnerability when asserting constitutional and human rights. Findings expose the misuse of laws against these marginalized groups, detailing arrest circumstances, prolonged detention, and the prolonged legal process. The study uncovers instances of torture, administrative hindrances, and prejudiced denial of bail, reflecting a gross misuse of the criminal justice system. The report underscores the deliberate repression of alleged Naxalite undertrial detainees in Jharkhand's jails, pointing to a need for structural reforms to address deeper societal inequalities. Additionally, it explores the ideological and schismatic differences between Adivasis and the mainstream, offering insights into the root causes of ongoing conflicts. The study contends that left-wing extremism is a symptom of systemic issues requiring a comprehensive analysis and reform of Indian society for a more sustainable, democratic, and egalitarian structure.

• UNDERTRIALS: A LONG WAIT TO JUSTICE

“UNDERTRIALS: A LONG WAIT TO JUSTICE” is a report on Rajasthan’s Periodic Review Committees published by Commonwealth Human Rights Initiative in 2011. The report underscores the critical importance of freedom in alignment with international human rights standards and the Constitution of India. Emphasizing correctional principles, it argues against treating prisons as societal dustbins and highlights the enduring claim to freedom for accused individuals. The presumption of innocence for un-convicted accused persons is seen as integral to fair trial principles. The report advocates for the Periodic Review System of undertrial prisoners, drawing from the experience in the State of Rajasthan over three decades. Conducted by the Commonwealth Human Rights Initiative, the study critically examines the functioning of committees responsible for reviewing the status of undertrial prisoners, presenting dismal findings. The intention is to aid various components of the criminal justice system, including the judiciary, jail authorities, police, and policy executives, in enhancing the effectiveness of this review procedure. The report proposes practical remedies and model formats to address issues such as overcrowding, unjust incarceration, and delays in case disposal, with the potential for swift implementation.

• UNDERTRIAL PRISONERS AND THE CRIMINAL JUSTICE SYSTEM

UNDERTRIAL PRISONERS AND THE CRIMINAL JUSTICE SYSTEM is a report published by Supreme Court Cases (2 SCC 2010, 25-32) and written by Madhurima Dhanuka. The introduction underscores the paradox of a justice system detaining a majority of under-trial prisoners presumed innocent, raising concerns about the severe consequences of pre-trial detention. Addressing issues like indiscriminate arrests, poverty-related detention, delays in investigation and trial, and prolonged incarceration, the paper proposes solutions through legislative amendments and existing provisions like sections 436, 436A, 167, and 437(6). Emphasizing the pivotal roles of prison authorities and visitors, the paper advocates for proactive measures to inform under-trial prisoners of their rights and facilitate the bail process. A coordinated approach among criminal justice stakeholders is urged to mitigate the suffering of under-trial prisoners, stressing the crucial need for the effective implementation of prevailing legal provisions.

• “GUILTY TILL PROVEN INNOCENT? Safeguarding the rights of pre-trial detainees across the Commonwealth”

“GUILTY TILL PROVEN INNOCENT? Safeguarding the rights of pre-trial detainees across the Commonwealth” (2022) is a report by the International Board of CHRI chaired by Professor Alison Duxbury; the lead author of the report being Madhurima Dhanuka. The report discusses the negative impact of overusing pre-trial detention, emphasizing it should be a last resort. It highlights socioeconomic consequences, such as disrupted economic prospects, increased poverty, and negative effects on education and healthcare access. The global problem of excessive pre-trial detention, particularly in Commonwealth countries, is outlined, with statistics indicating challenges like overcrowding. The report urges Commonwealth Heads of Government to address these issues, prevent extensive pre-trial detention, and improve prison conditions. It employs a structured approach, summarizing past initiatives, presenting statistical trends, analyzing legal frameworks across Commonwealth states, and providing recommendations based on a questionnaire distributed to all 54 countries. The report acknowledges limitations, focusing on legal frameworks rather than implementation, and aims to highlight gaps and good legislative practices for safeguarding pre-trial detainees' rights.

• 'Delays in Criminal Justice Process: Consequences for undertrial persons and their families'

This chapter by Vijay Raghavan gives an insider perspective about reasons leading to delays in processing of cases of undertrial drawing from the experiences of being associated with Prayas, a field action project of Tata Institute of Social Sciences (TISS). The article enumerates various case studies highlighting socio legal consequences of arrest, social stigma and stigma associated with imprisonment.

• Condition of Undertrials in India: Problems and Solutions

Murali Karnam and Trijeeb Nanda, in their article “Condition of Undertrials in India: Problems and Solutions” argue how the constitutional mandate of equality before law is mediated by property relations and caste. A large number of the poor, the Dalits and people from the minority communities are languishing in jail as undertrials because of a property-based bail system and a poor legal aid mechanism. In response, they propose reexamining the functioning of the bail system and extending the criteria for furnishing bail outside of property. Further, they argue how even the legal aid provided is dysfunctional. They remark “In most cases, the legal aid counsels neither contact the prisoners nor their family member to prepare the arguments.”

• Over-Representation of Muslims: The Prisons of Maharashtra

The article by Vijay Raghavan and Roshini Nair examines the current social composition of Muslims in prisons, the reasons for their over-representation in prisons and their experiences in prison. A total of 3,086 Muslim prisoners were identified from the prison records from the 15 selected prisons and the data from the records was analysed. While it has brought into focus the issue of over-representation of the Muslim community in prisons and examined some of the underlying reasons for this, the malaise runs much deeper. It points to the larger issue of social exclusion and marginalisation of communities which suffer from structural and systemic discrimination.

• Undertrial Prisoners in Bihar: A Study of Liquor Ban Arrests

The article by Praveen Kumar and Vijay Raghavan studies the undertrials in prison under the Bihar Excise and Prohibition Act. The article highlights the draconian nature of law coupled with the lack of proper implementation of the law, and negligence of the visiting jail panel advocates from the DLSAs, who did not take proper cognisance of the cases. The article documents the interventin made by researchers under Tata Institute of Social Sciences (TISS) Criminal Justice Fellowship.

Also known as

Pre-trial Prisoner

Undertrial prisoners are those who have not been convicted of a crime, while pretrial prisoners are those who are detained in prison during the period of investigation, inquiry or trial for the offense they are accused to have committed. In India, substantive law makes no distinction between the pre-trial and under-trial stages. The National Crime Records Bureau (NCRB), which collects data on Crime in India and publishes the Prison Statistics, also does not distinguish between pre-trial and under-trial stages while analysing prisoner detention. It combines the two categories and defines ‘under-trial’ prisoners as persons committed to judicial custody pending investigation or trial.