Undertrials – A case study of denial of justice

Undertrials – A case study of denial of justice

Recently in Satender Kumar Antil v. CBI case, the SC has asserted mandatory compliance with Sections 41 and 41A of the Criminal Procedure Code (CrPC) to give primacy to bail for undertrials. This has again reignited the debate on the rights of undertrials and the denial of justice.

    • Previously in a 2014 judgement, SC has asked not to arrest the accused automatically when the offence is punishable with imprisonment for a term which may be less than seven years.
    • On the contrary, SC (in Vijay Madanlal Chaudhary v. Union of India (PMLA case)) upheld the arbitrary conditions of bail under Section 45 of the Prevention of Money Laundering Act, thus discarding the “presumption of innocence” principle.

Right of Speedy Trails:

SC in Husain ara Khatoon case has held that under At. 21 a person has the right to speedy trail and justice.

Undertrials in India:

According to the ‘Prison Statistics India 2015’ report, released by the National Crime Records Bureau (NCRB), 67% of the people in Indian jails are under trials (people not convicted of any crime and currently on trial in a court of law). In which Bihar had the highest proportion of under trials, followed by Jammu & Kashmir. The occupancy rate at the all-India level at the end of 2015 was around 114%.

Reasons for the delay in justice:

    • Overburdened and understaffed judiciary as according to the Law Ministry (2016) there are only 18 judges per million population, while the Law Commission has recommended a minimum of 50 judges per million.
    • According to “Access to Justice survey”, legal system in India is too expensive for most of the citizens. About 90% of the litigants earn less than Rs. 3 lakh/annum.
    • Most of the people don’t use govt. legal aid because of the lack of communication and accountability.
    • There are a smaller number of Prison officials, who have to regularly review the legal status of under trials to determine whether they have spent enough time in custody to warrant release under Section 436 A of Cr.P.C.

Laws in this regard:

The Cr.P.C was amended to introduce Section 436A, to reduce overcrowding of prisons. Under this section, an undertrial prisoner shall be released on personal bond if he or she has undergone detention for a period extending to half of the maximum period of imprisonment s/he likely to get.

What needs to be done?

    • Keeping in view the human rights of the prisoners, it is essential that they are given reasonable space and facilities in jails. [US Multi story building model can be used].
    • An undertrial review committee, as asked by the SC to review the status of under trails.
    • The Legal Services Authorities, Lok Adalat and ADRs must be popularized to be used.


    • Open Prisons: Supreme Court has directed the Centre to consider setting up of open prisons, also called as minimum-security prison under Prisons Act, 1900. There are around 69 open prisons in India but only convicts can come here, not the under-Trails. It has various benefits like reduced overcrowding, Psychological benefits and skill enhancement.
    • Justice Roy Committee: Free phone call a day to his family members, trial through video-conferencing, at least 1 lawyer for every 30 prisoners and Special fast-track courts.
    • Currently, there are no laws in India that expressly allow conjugal visits to inmates.


    • National Legal Services Authority (NALSA) has launched a Web Application for free Legal Services to Prisoners.
      • It will show data regarding the status of representation through a barrister (pvt. or govt. or not represented), among inmates languishing in jails.
      • Thus, this will be useful for all the relevant authorities to monitor the grant of legal aid to the prisoners in order to ensure that absolutely no prisoner goes unrepresented right from the first day of his production in the court.
    • Project Progress Monitoring System (PPMS)/E-courts mission project:
      • The project implements ICT in Indian judiciary from filing of appeal to execution level. It also provides regional languages support.
      • It will increase transparency, accountability & cost-effectiveness.

Thus, from above debate it can be seen that the denial of justice is indeed a problem in case of undertrials. The blame for the same lies not only at government but also at judiciary. For this the suggestions mentioned above must be implemented.


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