Undertrial prisoner

Also called: Undertrial · Topic: Justice Delivery: Subordinate Courts, Tribunals, Legal Aid and Judicial Reforms · NCERT: Class 11, Ch 2 "Rights in the Indian Constitution"

Meaning

An undertrial prisoner is a person kept in jail while their trial is still going on, who has not been convicted of any crime. This matters because the law presumes such a person innocent. Yet undertrials make up about three-fourths of all prisoners in India, so many people spend long periods in jail without ever being found guilty.

Explanation

Who is an undertrial

• An undertrial has been accused of a crime and is held in custody (kept in jail by the state).
• The court has not yet decided if they are guilty.
• Core principle: the accused is presumed innocent until the court finds them guilty.
• Locking up an undertrial must therefore be rare, and there must be a reason for it.

• This is why courts say "bail is the rule, jail the exception". Bail means release before or during the trial, on a promise to come back to court.

• Why people stay undertrials:

• They are refused bail for a serious offence (a non-bailable offence, where bail is up to the court).
• Or they are granted bail but cannot pay the bail amount or arrange a surety (a person who promises to pay if the accused runs away).

The scale of the problem

• NCRB Prison Statistics India 2022 (as on 31.12.2022):
• There were 4,34,302 undertrials, up 1.7% from 4,27,165 in 2021 [4].
• Prison occupancy rate was 131.4%. Jails held about 131 inmates for every 100 places [4].
• By jail type: District Jails held 52.1%, Central Jails 35.8% and Sub Jails 9.8% [4].

• By state: Uttar Pradesh had the most undertrials (21.7%, 94,131), followed by Bihar (13.2%) [4].

• Who is affected most:

• The poor, SCs, STs, minorities and people who cannot read or write are over-represented. This means their share in jail is larger than their share in the population.
• They often cannot pay for a lawyer or find a surety.

Maximum detention limit: BNSS s.479

• What it is: a legal limit on how long an undertrial can be held. It applies to an offence under any law [2].
• Exception: it does not apply to offences punishable with death or life imprisonment [2].
• The two rules:
• General rule: the undertrial is released on bail once they have been held for half the maximum sentence for the offence [2].

• First-time offender (never convicted before): release on bond once held for one-third of the maximum sentence [2].

• Steps in order: 1. Check that the offence is not punishable with death or life imprisonment. 2. The undertrial completes half of the maximum sentence in custody, or one-third for a first-time offender. 3. The jail superintendent must apply to the court once that mark is reached. 4. The court releases the person on bail, or on bond for a first-time offender.

Other routes out of jail for undertrials

• Default bail (BNSS s.187(3), formerly CrPC s.167(2)): the accused gets a right to bail if police do not file a charge sheet within:
• 90 days, for offences punishable with death, life imprisonment or at least 10 years;

• 60 days, for all other offences.

• Undertrial Review Committees (UTRCs): district-level panels led by the District Judge. They review undertrial cases and recommend release.

• Support to Poor Prisoners scheme (MHA, 2023):
• It pays the bail amount or fine for poor prisoners who cannot afford it [3].
• It has ₹20 crore each for FY 2023-24, 2024-25 and 2025-26 [3].
• An Empowered Committee in each district decides the need in each eligible case [3].

In the Constitution and practice

• Article 21 (right to life and personal liberty) is the base. Keeping someone in jail for a long time without trial affects their liberty, so the detention must be fair and reasonable.
• Prisons are entry 4 of the State List (Seventh Schedule). Running jails is the job of the states. The Centre can only advise and give funds.
• Law on undertrials:
• s.436A CrPC (added 2005) set the half-sentence rule for the first time.
• BNSS 2023 (in force from 1 July 2024) replaced the CrPC. s.479 keeps the half rule and adds the one-third rule for first-time offenders.

• August 2024: the Supreme Court held that s.479 also applies to pending cases, including cases registered before 1 July 2024.

• Landmark cases:

• State of Rajasthan v. Balchand (1977): "bail is the rule, jail the exception".
• Arnesh Kumar v. State of Bihar (2014): no automatic arrest for offences punishable up to 7 years. Police must use a notice of appearance (an order to come to the police) instead.
• Union of India v. K.A. Najeeb (2021): a long stay in jail with no trial in sight can justify bail under Article 21, even under the UAPA.
• Satender Kumar Antil v. CBI (2022):
  • Undertrials who cannot furnish bail must be identified.
  • Bail conditions that a poor accused cannot meet must be reviewed.
  • Courts must decide bail pleas on time: 2 weeks for ordinary bail and 6 weeks for anticipatory bail.
  • The Court urged Parliament to pass a separate Bail Act, on the model of the UK Bail Act 1976.

• Manish Sisodia v. CBI/ED (2024): long pre-trial detention and a slow trial can override the strict bail limits of PMLA s.45.

• Free legal help: the Legal Services Authorities Act 1987 gives free legal aid to people who cannot afford a lawyer, which helps poor undertrials.

Don't confuse with

• Convict: a convict has been found guilty by a court and is serving a sentence. An undertrial has not been convicted and is still presumed innocent.
• Default bail (s.187(3) BNSS): this is triggered when police fail to file a charge sheet in 60 or 90 days. s.479 is triggered by time spent in custody, half or one-third of the maximum sentence.
• Anticipatory bail (s.482 BNSS): this is granted before arrest, so the person never becomes an undertrial in jail. Only the High Court or Sessions Court can grant it.
• Bailable offence (s.478 BNSS): here bail is a right. Many undertrials are in jail for offences where bail was allowed, but they could not afford the bail amount or surety.

Prelims Hooks

• BNSS s.479 = maximum detention of undertrials. It replaced CrPC s.436A (2005). The rule is half the maximum sentence in general and one-third for first-time offenders. The one-third rule is new in the BNSS [2].
• Trap: s.479 does not apply to offences punishable with death or life imprisonment [2].
• August 2024: the Supreme Court held that s.479 applies to pending cases registered before 1 July 2024.
• NCRB PSI 2022: 4,34,302 undertrials, occupancy 131.4%, and UP has the most undertrials (21.7%) [4].
• Support to Poor Prisoners scheme (MHA, 2023): pays the bail or fine of poor prisoners. It has ₹20 crore a year for FY 2023-24 to 2025-26, and an Empowered Committee in each district [3].
• Prisons = State List entry 4. UTRCs are led by the District Judge.

Mains Points

• Poverty, not guilt, decides who stays in jail:
• About 4.34 lakh undertrials and 131.4% occupancy in 2022 [4] show the scale of the problem.
• SCs, STs, minorities and the poor are over-represented because they cannot pay bail or hire a lawyer.

• Remedies include BNSS s.479 [2], active UTRCs, the Support to Poor Prisoners scheme [3], legal aid under the Legal Services Authorities Act 1987, and faster trials.

• The case for a Bail Act:

• Satender Kumar Antil (2022) found that bail practice differs from court to court, arrests are routine and bail conditions are beyond the reach of the poor.

• A single Bail Act (on the UK 1976 model) could set fixed time limits, clear presumptions and bail conditions people can afford.

• Liberty against public safety:

• UAPA s.43D(5) and PMLA s.45 make bail very hard to get. This keeps many undertrials in jail for years.
• Najeeb (2021) and Sisodia (2024) show courts using Article 21 and trial delay to grant bail.
• Critics say relief then depends on each judge. They argue a clear time limit should be written into the law, as s.479 does for ordinary offences.

Related concepts

• Bail
• Bailable offence
• Non-bailable offence
• Anticipatory bail
• Default bail
• Satender Kumar Antil case
• Plea bargaining
• Maximum detention of undertrials
• Model Prisons and Correctional Services Act 2023

Read more

• Criminal justice II: bail, undertrials and prisons