Every Individual by the mere birth shall become equipped with the human rights. Multiple violations of human rights in the arena of prison administration is an integral part of the violation of the human rights. The society, in general, considers the prisoner to be the wrong doer and presumes, the mistreatment towards them is considered to be a reasonable in nature. However, the primary purpose of the punishment is to protect the society from the crime and to deter the offender from repeating the crime but not subjecting the offender to the ill treatment. There is a famous quote by Mahatma Gandhi, “Hate the Sin but not the Sinner”. The Prisoner has to be reformed and to be given a chance to lead a dignified life. Ironically, Prisoners were being subjected to inhuman treatment and punishment was in the form of solitary confinement, mutilation, branding, whipping, starving etc.[1] Prisons were considered as a place of terror. Besides, all these Inhuman Treatments, Pretrial Detention (or) languishment of under trials in the prisons had become a major issue in the arena of Human Rights.

An under-trial prisoner is a one who faces trails in the competent court. These prisoners to speak technically, are the ones who face trials and during the thus are kept in the prison. The purpose of imprisonment or confining an under trial within a prison is not to punish, but as a means of keeping the accused of a crime detained until the actual punishment could be carried out and to prevent him from tampering with the evidence or to prevent him from committing the further crime. However, the existence of an disproportionate number of remands, undertrials and other unconvicted inmates in prisons has given rise to increasing public and professional concerns regarding non-compliance with human rights in institutions. This is particularly due to the protracted detention during the pendency of investigation and the trial which take a long time. By taking note of NCRB Annual Prison Statistics Report, one might express their concern about the number of the undertrial and unconvicted prisoners, which had reached alarming and disproportionate dimensions in the recent years[2]. The pathetic situations of the undertrials in the prisons are being revealed through some writ petitions such as the case of Rudul Sah.

The concept of human rights of under-trials was embraced under The Standard Minimum Rules for the Treatment of Prisoners (1955) also known as ‘NELSON MANDELA RULE’ which has been adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, where some of the important guidelines were laid down relating to the Under trials such as segregation of Under trials from convicted so as to not to get influenced by the attitude of convicts and for the provision of legal aid etc[3].  

India being a signatory to the convention made so many efforts and exemplified the human rights for under trials through various Acts, guidelines, manuals and commissions. The National Human Rights Commission has been taking steps to arrange the release of under trials from various prisons in the country, contemplating the problems both from human angle and Prison Management perspective. The NCRB, which submits the Annual Prison Statistics to the government helps the NHRC to assess the Conditions of the under trials in the Prisons. The NALSA and SALSA were also very keen about the conditions of the undertrials in the prisons. Supreme Court in various instances had issued orders to mitigate the problems of the undertrials. It had ordered for the constitution of the “Under trials Review Committee” in 2013 to review the conditions of the Undertrial and to examine how many are eligible for the bail under Sec.436A of Crpc. The State Legal Services Authority has proposed for the fast track courts to dispose the matters relating to the undertrials effectively.[4]

Analyzing the Prison Statistics Report, 2018:

The NCRB, which comes under the auspices of Ministry of Home Affairs, is responsible for providing the annual statistics relating to the prison, which includes various aspects such as Number of Prisons, Number of Prisoners, Categories of Prisoners, Deaths in Prisons and Age and Sex of Prisoners etc. Here, I Just focused on the data relating to the undertrial prisoners.

From the Prison Statistics Report, 2018[5], it evident that there is a steep rise of undertrial prisoners in the prisons from 2016-2018, that is about 10.4% from 2016. The Population of undertrial prisoners in prison by the end of 2016 is 2, 93, 058 and by the end of 2018 is 3, 23, 537, which constitutes 69.4% of the total prison population[6]. Out of 3, 23, 537 undertrials, 51.3% were in District Jails, 35.9% were in central Jails and 10.5% in the sub jails[7]. The UP, Bihar and Maharashtra stands in first 3 consecutive places with highest number of undertrial prisoners[8]. From the above data it can also be inferred that the women undertrials were 12, 663 in number and accompanied by children who stands at 1, 590[9]. The Foreign Undertrials stands at 2, 611.[10]

It is also clear from the above statistics the most of the undertrials are of the age group of 18-30 years and they have come from unprivileged backgrounds with no formal education and belonging to the lower castes[11]. Moreover, there are 5, 104 (1.6%) undertrials who have been languishing in the jails for more than 5 years[12]. There are 1, 822 undertrials, who are eligible for release under Sec.436 but were not released due to the procedural delays[13].

It is pity to mention that there are only 1, 339 jails to accommodate the whole prison population, which constitutes around 3, 96, 223[14]. This depicts the problems of overcrowding in the Indian Prisons. Moreover, the overcrowding, per se, has its own affects. Such as, due to overcrowding all categories of prisoners are clubbed at one place and it may leads to the negative impact on the Juveniles, First time offenders and Petty offenders etc. It also may lead to the violence in prisons and the convicted/ Brutal offenders takes the advantage of the First time (or) petty offenders and name call them with their castes since most of the undertrials belongs to the lower and unprivileged castes and could not afford the legal aid. It also creates the kios in the prison administration. The prison administration instead of being a reformation center just confines itself into a “clerical workshop” by just jording down the names of the prisoners. In the case of Sri Ramamurthy v. State of Karnataka[15], the court has identified the 9 major problems which afflict the prison system and requires the immediate action. “They are: (1) overcrowding; (2) delay in trial; (3) torture and ill- treatment; (4) neglect of health and hygiene; (5) insubstantial food and inadequate clothing; (6) prison vices; (7) deficiency in communication; (8) streamlining of jail visits; and (9) management of open air prisons”.

The 3 major hindrances[16], which are coming in the way of the undertrials, are

(i)              Lack of quality legal aid services for undertrial prisoners who cannot afford the services of good lawyers to defend themselves in court. While the state does provide free legal aid services to needy persons through the district legal services authorities, often the quality and consistency of these services are questionable. There are too many complaints against these lawyers about irregular appearances in courts, lack of communication with their clients about the status of their cases.  

(ii)            Financial system of bail that exists in our country. This means that an accused has to deposit the bail amount in the court till the end of the trial in case of cash bail, or produce a surety who can prove that he can pay the bail amount specified in the bail order in case the accused absconds. This implies that if a person is poor and cannot pay the cash bail or produce a surety, he/she will continue to languish in prison till the trial ends. This, though relaxed with the substitution of Section 436A of Crpc has becoming difficult for the undertrials to get the bail as we can see from the above data.

(iii)          Delay in trial process. There are number of factors which are attributed to the delay in the trial process, one of such is the very poor judge–population ratio in India, which stands at 19 judges per million population[17], as compared to between 35 and 50 judges per million population in most advanced countries. There are some other factors which attributes the delay in trial such as Non Appearance of witness, Non Production of Accused in Courts and tactics by the advocates for protracting the case.

Legal Provisions and Judicial Attitude towards Undertrials:-

There is no specific provision in the Constitution which deals with rights of the undertrial prisoners. In order to uphold the Rule of Law and Fairness, the Supreme Court had to interpret Articles 14, 19 and 21 in Part III along with Articles 38, 39, 39A and 42 in Part IV to provide various fundamental rights available to the undertrial prisoners.

Besides the Constitutional guarantees, there are so many legal provisions which guarantee the rights to the undertrial prisoners Such as Section 41, 41A, 41B, 41C, 41D, 436, 436A of the CrPC, Section 7 and 29 of the Indian Police Act, 1861 and Section 376(1) (b) of the Indian Penal Code, 1860.

The study of the various rights of the prisoners, enunciated in the catena of judgments in the post Maneka Gandhi[18] period can be done under 3 subheadings[19]:

(a)  Right to Speedy Trial

The right to speedy criminal trial is one of the most valuable fundamental rights guaranteed to a citizen under the Constitution, which is integral part of right to life and liberty guaranteed under Article 21. In Kartar Singh vs. State of Punjab[20], it was observed: The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages till it consummates into finality.

In the leading case of Hussainara Khatoon v. State of Bihar[21], it was held that where the under-trial prisoners have been in jail for periods longer than the maximum term to which they could have been sentenced if convicted, then their detention in jail is unjustified and violative of Art. 21. It further held that the right to speedy trial is an integral and essential part of the fundamental right to life and liberty enshrined in Art. 21.

(b)  Right to Legal Aid

It was also held in Hussainara Khatoon’s Case[22] that “Right to free legal aid as given under Art.39A was implicit in Art. 21 because a procedure which does not make available legal services to an accused person, who owing to his poverty cannot afford a lawyer and who would, therefore, have to go through the trial without legal assistance cannot possibly be treated as just, fair and reasonable procedure and is thus, violative of Art. 21.”

In Khatri v. State of Bihar[23], it was held that the legal aid should not be provided at the commencement of the trial only, but it should be provided when the person is brought before the magistrate for the first time. Lastly; in the chain of these cases ensuring justice to the prisoners, comes the case of Suk Das v. Union Territory of Arunachal Pradesh[24], which held that it was an obligation on the part of the Magistrate or Session Judge to tell the accused of his right to have a lawyer at State’s cost.

(C) Right to Compensation:-

An Undertrial Prisoner can approach the Supreme Court under Art.32 and High Court under Art.226 and claim for compensation for the violation of his rights while in custody of the police. In D.KBasu v. State of West Bengal[25], the court had talked about the right of compensation of the victims and held that “The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 21 and 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalizing the wrong doer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen”.

In Rudul Sah v. State of Bihar[26], it was observed that “One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in this country as it has perished in some others too well-known to suffered, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner’s rights”.

In Bhim Singh v. State of J&K[27], the court while awarding the compensation to the victim Bhim Singh observed that, “Police Officers who are the custodians of law and order should have the greatest respect for the personal liberty of citizens and should not flout the laws by stooping to such bizarre acts of lawlessness. Custodians of law and order should not become depredators of civil liberties. Their duty is to protect and not to abduct”.

Some other Notable Cases:-

In Moti Ram v. State of Madhya Pradesh[28], the court observed that “The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”

In the case of In Re: Inhuman Conditions in 1382 Prisons[29], the Supreme Court had issued directions to setup Undertrial Review Committee in every district which should specifically look into aspects pertaining to effective implementation of Section 436 of the Code of Criminal Procedure and Section 436A of the Code of Criminal Procedure so that undertrial prisoners are released at the earliest and those who cannot furnish bail bonds due to their poverty are not subjected to incarceration only for that reason. The Under Trial Review Committee will also look into issue of implementation of the Probation of Offenders Act, 1958 particularly with regard to first time offenders so that they have a chance of being restored and rehabilitated in society

In the case of Maliyakkal Abdul Azeez v. Assistant Collector, Kerala[30], the court while examining the views of Joint committee on Sec. 428 of the CrPC observed that, “The Committee has noted the distressing fact that in many cases accused persons are kept in prison for very long period as undertrial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as undertrial prisoner. Indeed, there may even be cases where such a person is acquitted. No doubt, sometimes courts do take into account the period of detention undergone as undertrial prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone. But this is not always the case so that in many cases the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute. The Committee has also noted that a large number of persons in the overcrowded jails of today are undertrial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs. The new clause provides for the setting off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on him. The Committee trusts that the provision contained in the new clause would go a long way to mitigate the evil.“

Recommendations of Various Committees on Undertrial Prisoners:-

There have been so many recommendations made by various committees, commissions and International Organizations on the Conditions of Undertrial Prisoners. Here, I’m going to deal with 3 Recommendation Reports. They are 78^th Law Commission Report, Mulla Committee on Prison Reforms and Amnesty International Report.

(i)    78^th Law Commission of India Recommendations:-

The 78^th Law Commission Report on Congestion of Undertrial Prisoners in Jails had made a few suggestions in respect to the mitigating the problems of the undertrials. Some of the Recommendations[31] are:-

(a)   To deal with the problem of congestion of undertrials, the prisoners had to be segregated into 3 types:-

(i)    Persons being tried for non-bailable offences in respect of whom courts have declined to pass an order for their release on bail.

(ii)  Persons being tried for non-bailable offences in respect of whom courts have passed order for bail but who, because of difficulty of finding appropriate surety or because of some other reason, do not furnish the bail bond.

(iii)                     Persons who are being tried for bailable offences but who, because of the difficulty of finding appropriate surety or some reasons, do not furnish the bail bond

and to implement measures mentioned in 77^th Law Commission to reduce delays and arrears in the trial courts.

(b)  In order to prevent interested parties from prolonging pendency of cases, a certain amount of strictness is necessary to ensure prompt disposal.

(c)   Trial Magistrates should furnish periodical statements of cases in which the accused are in custody and which are not concluded within the prescribed time.

(d)  In times of some agitation, numerous persons defy law and court arrest, causing a sudden spurt in the number of undertrial prisoners.  Most of them would not offer bail.  Such persons should be put up for trial soon after their arrest in order to avoid congestion in jails.

(e)   Quite a substantial number of persons who are being proceeded against in security proceedings for keeping peace and for good behavior are detained in jail as undertrial prisoners because of their inability to furnish the requisite bond. The cases against those persons should be heard with due promptness and despatch. Efforts should be made to conclude these proceedings within 3 months.

(f)   Inordinate delay in the investigation of cases should be avoided. The diversion of police officials concerned with investigation to other duties relating to law and order should be avoided. It causes delay in investigation, as pointed out in 77th Report.

(g)  Where the accused is in jail, adjournments of cases should not be granted unless absolutely necessary.

(h)  There should be separate institutions for the detention of undertrial prisoners, the induction of a large population of undertrial prisoners in a building essentially meant for convicts being undesirable. However, the creation of such institution is a matter of long-term planning and of financial implications. Other steps to reduce the number of undertrial prisoners may therefore have to be taken.

(i)     The question of providing for bail hostels for persons who, though ordered to be realeased on bail, cannot offer bail, has not been considered in the Report as a part from its financial implications and need for long-term planning, its prospects in the present conditions are rather remote

(ii) Mulla Committee on Jail Reforms:-

Committee on Prison Reforms headed by Justice Anand Narain had submitted a report in which it had made some of the recommendations regarding the undertrial, unconvicted prisoners. Some of the Recommendations are as follows[32]:-

(a)   Lodging of under trials in jail should be reduced to bare minimum and they should be kept separate from the convicted prisoners. Since under trials constitute a sizable portion of prison population, their number can be reduced by speedy trials and liberalization of bail provisions.

(b)  A Board of Visitors should be appointed in every district to visit regularly all police lockups in the district and report the conditions of the undertrials.

(c)   Institutions meant for lodging the undertrial prisoners should be as close to the courts as possible. Undertrial prisoners shall not be taken to the court on foot or roped with each other

(d)  Release of Accused person on personal recognizance should be encourage in certain cases.

(e)   The time spent by the undertrials in the jails should be put to the benefit of both prisoner and the society. They shall be made to work and to be paid on the basis of work done.

(iii)  Amnesty International Recommendations:-

Amnesty International in its report “A Study of Pre Detention Trial in India”, had made some of the Suggestions[33]. They are:-

(a)   Standardize the remuneration paid to legal aid lawyers across India, and ensure that lawyers are paid competitive salaries in a timely manner.

(b)  Set up a computerized database and tracking system for prisoners in all prisons, which will regularly alert prison authorities on undertrials eligible for release which will be  maintained and updated at the state-level.

(c)   Appoint more legal aid lawyers according the the needs of the state.

(d)  Strengthen the monitoring of legal aid lawyers’ effectiveness to ensure accountability and quality representation.

(e)   Ensure that legal aid lawyers at the state, district and taluk levels are required to submit regular reports on the status of their cases, and hold lawyers failing to do so accountable.

(f)   Ensure that legal aid lawyers are paid on a monthly basis.

(g)  Undertake regular awareness programs in prisons to ensure that all undertrials are informed about their legal rights, including access to legal aid, procedural safeguards and bail.

Other Recommendations and Conclusions:-

I believe that some of my recommendations will also contribute to mitigate the adversities and problems, which are being faced by the undertrials. They are:-

(a)     At present NHRC is responsible to deal with the cases of torture in custody but the NCRB should also be included to deal with this cases so as to gather the statistical information and date more precisely.

(b)  In order to uphold the justice the court has to adapt to the speedy trails where the under trail prisoners can get quick access to the justice, in which ad hoc courts shall be establishes and Special Public Prosecutors shall be appointed. The registrar of courts shall be bestowed with the duty to oversee the list of cases where the undertrials are being held in prisons for a long time.

(c)   The officials who deal with prison administration at ground level comes from the minimal educational backgrounds which brings in the necessity of providing adequate training. Besides the work pressure channelizes the workforce to use inappropriate means of treating the prisoners. So, there has to be given adequate training and the knowledge of law which governs the prison administration.

(d)  The cases which are compoundable in nature and the offence which are not grievous in nature should be allowed for the plea bargaining and the duty lies with the Jailer and the court.

(e)   There should be prisoner unions which are capable for availing their rights.

(f)   There should be real time governance through implementation of the state of art technology.

The Conditions of the undertrials are so pathetic in India. Though, this problem is not unique to India, but it must focus on finding the solutions to the problems of undertrials. With the effective implementation of the above recommendations from the committees, commissions and some of my suggestions, I believe we can reduce the problems of the undertrials.