Indian criminal law gives all accused the legal presumption of ‘innocent unless proven guilty’, which seems to have been denied to the undertrials.

“अंगेना गात्रम नयनेन वक्रतम न्यानेन राज्यम लवनेन भोज्यम”

The essence of the Indian Constitution is in the pillar of social justice. Dr B.R. Ambedkar’s notion of social justice entails human rights and right to dignity with equitable and distributive justice. At the age of 75, India envisions equality for all and providing a dignified life with equitable justice along with an equal access in participation in political, social, and economic spectrums.
According to the “Prison Statistics India 2021” report recently released by the National Crime Records Bureau (“NCRB”), the number of under-trial prisoners continued to increase during the period of 2016-20211 [by 45.8%]. The Dalits, tribals and OBCs continue to face the brunt of the lacunae in the judicial system. The presumption of innocence, as affirmed in the Constitution and in Universal Declaration of Human Rights (UNDHR), is one of the most fundamental human rights principles. However, unfortunately, Indian prisons continue to be inhabited by more than 77.1% under-trial prisoners.2 Out of the 4.2 lakh prisoners in India, around 73.8% belong to the marginalized communities. Incarcerations continue to disproportionately impact the most socio-economically vulnerable sections of society. It is commendable that the recent attempt by Prime Minister Narendra Modi brings attention to the incarceration and deprivation of the freedoms and liberties of pre-trial detainees, especially, Dalits. Undertrials are prisoners, who without being convicted of the charge(s) for which they are detained, are facing trial in court. Indian criminal law gives all accused the legal presumption of “innocent unless proven guilty”, which seems to be denied to the undertrials. Regrettably, the period of imprisonment already undergone by many undertrial prisoners is more than the possible sentence imposable on conviction.
The Supreme Court, in the landmark case of Hussainara Khatoon [AIR 1979 SC 1369], took cognizance of the fact that right to a speedy, reasonable, and expeditious trial is an integral and fundamental part of right to life and liberty under Article 21 of the Constitution3. Prolonged detention of undertrials awaiting trial amounts to violation of Article 21 of the Constitution. The inherent economic discrimination in the judicial machinery is visible and marks the failure of the judicial system to guarantee timely justice to the poor and underprivileged. Although, the Criminal Procedure Code does not define the term “bail”, it categorises offences as, bailable and non-bailable. An accused is entitled to be released on bail immediately upon furnishing bail in case of bailable offences. However, the courts have a discretion to release an accused on bail if they are satisfied that the person shall attend court to stand trial, not obstruct police investigation, not tamper with evidence or influence witnesses and not hinder justice in any manner. The Supreme Court has held in a catena of judgments that “bail is the norm, whereas jail is an exception”. However, the number of undertrial prisoners continues to increase at an astonishing rate.
Our bail system seems to favour those who can afford justice. This renders the very idea of justice as unattainable and prejudiced against the poor and the marginalised. The SCs, STs and OBCs, with women at the intersection being the most vulnerable, end up with inadequate or no representation before the courts. The failure of payment of cash bail bond or production of surety by the accused makes them languish in prison till the end of the trial. This infringes on Article 21 (right to life and personal liberty) with Article 39-A (right to equal justice and free legal aid).
Recently, PM Modi, at a joint conference with the Chief Ministers and the Chief Justices of various High Courts raised the issue of the huge number of undertrials in jails in India, especially from the “poor or from ordinary families”. He acknowledged and advocated for resolving the fundamental issue with thousands of persons, who should be presumed innocent until proven guilty, spending years languishing in detention waiting for their trials to conclude. PM Modi strongly submitted that solving cases of undertrial prisoners on priority and releasing them on bail must be adopted as a norm.
Long incarcerations are usually because of the inability of the poor, the deprived and underprivileged sections of society to arrange for their defence and to afford bail. The courts must make efforts to reduce incarcerations and ensure justice, including the right to free legal aid, must discourage indiscriminate and unnecessary arrests by police, create awareness around legal rights in mother tongues for the masses and introduce reforms in laws related to bail. The gruesome conditions for furnishing bail, especially to an accused disadvantaged due to his/her socio-economic profile, need to be reworked. Efficiency in the judicial machinery would ensure an opportunity for a fair trial with timely examination of witnesses to undertrial prisoners. Covid-19 effectively ensured that the courts can easily switch to electronic modes of communication to conduct proceedings efficiently. The movement towards tech-savvy courts, jails and other stakeholders would ensure more robust and efficient court hearings with relatively lower resources. PM Modi has emphasised that ease of justice is as important as ease of doing business and ease of living and in this direction, the Centre has invested more than Rs 9,000 crore to improve the judicial infrastructure. The Prime Minister’s suggestion for the use of technology not only for the access of justice but also for the delivery of justice would be a great chance to redeem the judicial system for the benefit of indignant undertrials facing inhumane conditions in prisons.
The legal justice system should also fall in line with the rehabilitative theory, especially for the members of the disadvantaged communities, who are easy targets. Moreover, the state must focus on administrative reforms for jails along with financial investment in the prison infrastructure to save the system from collapse and ensure reformative justice to make the criminal system more robust. No separate Bail Code can be effective unless these issues are dealt with. It is praiseworthy that PM Modi has emphasised that the District Undertrial Review Committees headed by District Judges must fast-track the review and release of undertrials. However, definitive guidelines and administrative oversight need to be put in place for efficacy.
Under Article 39A of the Constitution, the state is under obligation to provide free legal aid services to the indigent. The judges are obligated to inform the accused of the provision of the legal aid services, in case of his/her inability to engage an advocate for the same to ensure a reasonable, just and fair trial. However, implementation has been inadequate due to illiteracy, lack of awareness, which renders the remedy unreachable to the masses. Even in cases where legal aid is provided, the quality of such advocates remains a concern. Thus, expanding the scope of free legal aid is an essential step to remedy the situation of undertrials in India. Bar Council and Association including NLUs and legal aid cells of law colleges across India can play a major role in this direction, provided they’re empowered by the judiciary and the government. One such “Project-39A” by National Law University, Delhi is worthy of mention and commendation.
We have entered the Amrit Kaal of Azadi, with the Prime Minister’s deep resolve in creating a modern India with the goal of social harmony, Antyodaya and an equitable justice system; Much is being done and a lot more is to be done.

Dr Aditi Narayani Paswan is Assistant Professor, Maitreyi College, University of Delhi.
Vanya is an advocate practising in New Delhi. She is a 2018 graduate from National Law University, Delhi.

1. Prison Statistics in India 2021 Report by the National Crime Records Bureau (“NCRB”), Union Home Ministry, Chart 2.12. Trend in Number of Convicts, Undertrial Inmates, Detenues and Other Inmates in 2016-2021, Pg. 44, Url: https://ncrb.gov.in/sites/default/files/PSI-2021/PSI_2021_as_on_31-12-2021.pdf
2. Prison Statistics in India 2021 Report by the National Crime Records Bureau (“NCRB”), Union Home Ministry, Table 2.2., Percentage Share of Different Types of Prison Inmates as on 31st December, 2021, Pg. 47, Url: https://ncrb.gov.in/sites/default/files/PSI-2021/PSI_2021_as_on_31-12-2021.pdf
3. Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81