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Author: Kirti Lal, III year of B.A.,LL.B. from School of Law, KIIT University, Odisha


The Criminal Justice System laid down its premises on the principle of Natural Justice. Justice is an integral part of the legal system. In rendering Justice, the law and the lawmakers should not violate the rights of others. An under trial prisoner is yet to be convicted or acquitted relying upon the trial. Under trial should not be labelled as Convict as the charges against them are yet to be proved beyond a reasonable doubt. Every accused is ‘Innocent until proven Guilty’ and they should be given all the right to protect and defend themselves. Human Rights are available to all individuals irrespective of the notion whether that person is a Convict or the one who is set free. Under Trial, the prisoner should not be deprived of basic human rights when they are detained or put in jail. The present paper will be dealing with the topics, rights of the under trial prisoners, the right to get legal aid followed by the right to have a fair representation in the court of law to defend themselves. The role of the Judiciary and the prison authorities in rendering those rights to the prisoners, landmark judgements related to the rights of under-trials, analysing the recommendation made by Justice Roy Committee on Prison reforms and the impact of COVID 19 on the health of the prisoners affecting their right to health which is a fundamental right guaranteed under Article 21 of the constitution.

Keywords- Rights, under trial, Justice, prisoners


An under trial prisoner is one against whom the trial has been commenced and the person is not convicted yet. Following the legal postulate of ‘Innocent Until Proven Guilty,’ the under trial prisoners have the right to get a fair representation before the court of law. [i]The issue of undertrial prisoners in India first came to light in 1979, when a member of the National Police Commission KF Rustomji exposed the conditions of undertrials in Bihar prisons, through the Indian Express. The purpose of the Criminal Justice system is to protect the rights of an individual, even if the person is a prisoner, convict or an under trial. Basic human rights protection should be of paramount importance and cannot be denied or discarded at any cost. India has witnessed various reforms in the prison administration post-colonial era. The under trials are in Judicial Custody and it’s the role of the Judiciary to ensure that their rights have not been violated. [ii]The 78th Law commission Report defines Under Trial Prisoners as “Undertrial is a person who is in judicial custody or remand during the investigation. An undertrial prisoner is the one who has been detained in prison during the period of investigation, inquiry or trial for the offence they are accused to have committed.”


[iii]The data release in the year 2019 has revealed that there are more than one lakh people lodged in India as under trials. As per the report of the National Crime Record Bureau, 67% of the people in Indian Jails are under trial the proportion is extremely high when compared with other countries such as in the UK it is 11%, 20% in the US and 29% in France. The total number of prisons has been released by 0.82% in the year 2019. The death of prisoners in jail custody is a matter of high concern. These deaths can be classified as natural and unnatural deaths. As per the Prison Statistics India, report released by NCRB in the year 2019 a total of 1, 775 prisoners have died while they were in Judicial Custody. Under this Natural death accounted for 86.99% and Unnatural death accounted for 9.30%.


The rights of under trial prisoners are enshrined both in the constitution of India and the Code Of Criminal Procedure. The constitution of India guarantees every citizen (some rights are guaranteed to non-citizens as well Article 14, 20, 21, 22) certain basic fundamental rights and the state has to protect these rights. If the rights are violated the aggrieved party can approach the apex court for protection of their fundamental rights. The code of Criminal Procedure lays down the procedure that has to be followed during the pre-trial stage, trial, and post-trial. The provisions are enacted in a manner that provides the equal right to the accused or the convicts during the trial procedure. Some such rights are discussed below-

RIGHT TO FAIR AND SPEEDY TRIAL- Article 21 of the Indian Constitution lays down the provision for the protection of the life and personal liberty of an individual. This article also forms the basis of a fair and speedy trial. Article 21 ensures a just, fair and reasonable procedure and the right to a speedy trial has become a legally recognized human right. The personal liberty of the under trial prisoners has to be protected and any in human, cruel treatment is prohibited.

RIGHT TO LEGAL AID- The prisoners have the right to exercise the right to have legal aid. Article 39A of the constitution for free legal aid. To promote Justice the state has to provide free legal aid. It becomes the intrinsic right of the under-trial to seek legal aid and fair representation. Under Section 304 of the Code of criminal procedure, the provision of fair trial and legal aid is highlighted. If the accused is not represented by a pleader or he has no sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the court.

RIGHT TO REASONABLE WAGES IN PRISON-The prisoners who are made to work in the prison should be paid a reasonable wage for their work. If they are not paid for their work, this will amount to forced labour and violation of Article 23 of the Constitution.

RIGHT TO EXPRESSION- The right to personal liberty includes the right to write a book and get it published. This was held in the case of the State of Maharashtra Vs Prabhakar Panduranga[iv]where the detenu was denied the right to write the book and get it published, it was held by the court that denial without the authority of law violates Article 21[v]

RIGHT TO BE RELEASED (SECTION 436A CRPC)- Under Section 436A Crpc, Undertrials who have undergone imprisonment extending up to more than half of the sentence for the accused offence cumulatively are eligible for release on personal bond with or without sureties. The provision lays down the maximum period for which under trial can be detained. As per the prison statistics in India, a total of 635 undertrials were released under section 436A of CrPc.


Hussainara Khatoon (II) V. Home Secretary, State of Bihar[vi]

In this case, a Writ petition was filed in the court seeking the release of the under trial prisoners. The main article which forms the crux of the case is Article 21 and Article 39A of the constitution. The petitioner here, in this case, was confined in the Central Jail and was produced before the magistrate and remanded again and again in the Judicial Custody. The court found this act unsatisfactory as the proper dates were not mentioned the under trials remand in the Judicial Custody. The Supreme Court observed that the financial constraints and priorities in expenditure would not enable the government to avoid its duty to ensure speedy trial to the accused. The court recommended the Central and government to paradigm a comprehensive legal service programme that will guarantee just, fair and reasonable Justice. In Khatri V. State of Bihar[vii], the Supreme Court emphasized that the state government cannot avoid the constitutional obligation to provide free legal service.

Prem Shankar Shukla Vs. Delhi Administration[viii]

In this case, the petitioner challenged the provisions of the Law of Crime and Constitution contending the constitutional validity of hand-cuffing. The petitioner was an under trial prisoner and was kept in Tihar Jail. On the days when he was to be produced before the magistrate, he used to be handcuffed by the escorting police officer. The trial court has clearly stated that handcuffs should not be used, but the escorting office did not pay much heed to the same. Owing to which the petitioner sent a telegram to one judge of the Supreme Court stating the humiliation and torture he is facing and also filed a habeas corpus petition in the supreme court. The Supreme court contended that “handcuffs are prima facie inhuman, unreasonable, and at first blush, arbitrary without a fair procedure and objective monitoring.”[ix] Handcuffing are violative of Article 14, 19 and 21 of the constitution of India. The court stated that handcuffing can only be done when there is a clear and present danger of escape, breaking out of the policy control. Before handcuffing the accused prior permission of court has to be taken.

Sunil Batra Vs Delhi Administration[x]

The petitioner in the case was a convict of the death sentence on the charges of murder. He was kept in the Tihar Jail. Serving in prison, he faced severe torture and brutality and wrote a letter to the Supreme Court judge. The letter contains the act of torture faced by prisoners by the police authorities and other inmates. Court-appointed Amicus Curiae would visit the prison and meet the prisoners and report the same in the court. Amicus Curiae presented their findings before the court and stated that the prisoner was being tortured by a jail ward official. The act of the ward official was heinous as he inserted the rod into the anus of the prisoner which resulted in severe bleeding. The prisoner was taken to the hospital immediately. The court on hearing the case stated that where the rights of prisoners under the constitution or any other are violated, the writ power of the court should run to rescue. In this landmark mark, the Supreme Court showed their concern about the prisoners and what can be the necessary guidelines that can be implemented to help secure their rights. Awareness programmes can be conducted to make the prisoners aware of their rights, which can facilitate them to raise their grievances and complaints.

Sheela Barse Vs. State of Maharashtra[xi]

This case highlighted the rights of women under trial prisoners and their complaints of harsh treatment and torture in the lock-up by the prison authority. Sheela Barse, a journalist, wrote a letter to the Supreme Court and mentioned her concern for the ill-treatment faced by women in the prison. The letter was treated as a writ petition under Article 32 of the Indian Constitution. Deciding the case, the Supreme Court held that social workers can make a report of the female prisoners regarding the ill-treatment faced by them and laid down some guidelines for the same. There should be separate prisons for female prisoners and it has to be guarded by a female official, interrogation can be done in the presence of a female police officer, female suspects to be checked by female officer[xii]


The Supreme Court in the year 2018 appointed the Justice Roy Committee to examine the various problems conserving the prison, from overcrowding to lack of legal advice to the convict. The others in the committee include the IG Bureau of police research and development and DG Tihar Jail. The recommendation of the committee includes- Every prisoner should be allowed a free phone call a day, trials through video conferencing, staffing the prisons, speedy trial to remedy overcrowding of prison. Special Fast track courts should be established and free legal aid and vocational training programmes should be conducted.


COVID 19 Pandemic has taken the world by storm. The entire country is affected due to the deadly virus. The basic norms that have to be followed during this period are sanitization, wearing a mask and social distancing. Since the overcrowding of prison is on surge so there are high chances of the under trial being affected by the Virus. The authorities should take all necessary measures to avoid the under trial contracting of the virus. Considering the present situation, the Judiciary has taken necessary measures. Some prisoners might not be willing to release their social background and have a high chance of being infected with the virus. They should be provided proper medical facilities and regular testing has to be done of prisoners and Jail staff. Precaution shall be taken to prevent the transmission of the deadly virus amongst the inmates of the prison.

The first case of COVID-19 infection among the prison inmates was reported in Rohini Jail on May 13, 2020. The Supreme Court has taken Suo Motu cognizance of overcrowding in prisons across the country. Andhra Pradesh High Court on the recommendation of the high power committee directed that all convicts and undertrial prisoners be released on interim bail of 90 days[xiii]Owing to the second wave of COVID 19, over 2800 prisoners have been released on interim bail or emergency parole from three Delhi Jails. The right to health of under trial prisoners is of paramount importance in these difficult times and the precautionary measures are taken by the authorities and the release of some under trial reflect the seriousness of the matter.


The right of the Under trial prisoners is a basic human right that should not be denied to them. Under trial they are yet to face their trial and in such circumstances, it is very important to ensure that they are safe in the Custody, no unnecessary force has been used against them. Many of these under trial prisoners belong to the poor economic background in this scenario the state should ensure that they are provided with free legal aid and all the necessary means. Judiciary should play an active role, by conducting the speedy trial, free legal aid, releasing them on the furnishing bail bond. All these will also help in bringing down the overcrowding rate of prison as under trial forms the majority of the prison population in India. New and effective measures should be adopted to facilitate speedy trials. The existing laws should be implemented effectively. It is to be understood that under trial are the ones who still await to face the trial and are innocent until proven guilty beyond a reasonable doubt. They should not be treated as Convicts which will be a gross violation of their human rights.

The Sate of Under Trial Incarceration In India, Vidushi Gupta, October 25, 2020

[ii]Law Commission of India, 78th Report on Congestion of Under-Trial Prisoners In Jails,

[iv]1966 SCR (1) 702

[v] Prisoners Rights Seriously, Saurabh Kothari,

[vi]1979 AIR 1369, 1979 SCR (3) 532

[vii]1981 SCR (2) 408, 1981 SCC (1) 627

[viii]AIR 1980 SC 1535

[x]1980 AIR 1579, 1980 SCR (2) 557

[xi]1983 SC 378


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