Hon’ble Supreme Court of India, in a stunning case associated with the administration of justice, Hussainara Khatoon VS State of Bihar AIR 1979 SC 1369 observed “Large number of men, ladies and even youngsters are behind the bars simply because of the slow trails. The offences that these people had committed were quite trivial in nature during which although they’re well-tried guilty, they won’t get a penalty for over an amount which cannot be excessive of two months in the least, maybe most for a year or two. However, until the judgment, these unfortunate forgotten specimens of the society need to keep within the jail for an amount go 3 to 10 years, thus, bereft of their freedom.”
The observation of the Hon’ble Supreme court portrays the pitiable condition of the undertrial prisoners in India as far back in the seventies of the previous century, the situation has not improved rather has deteriorated precariously.
An under trial is a person incarcerated, even though, yet to be pronounced guilty. A person who has been languishing in jails or institution, even during the investigation, inquiry, or trial of the crime for which they were arrested or apprehended. In strictly legal sense an under-trial prisoner is person who is incarcerated and whose fundamental rights are curtailed, without being ‘proven guilty”. The theory of “innocent until proven guilty” is under attack in India, and is gross human rights violation of unfortunate forgotten specimens of the society languishing in various jails, although not proved guilty and if found guilty are still languishing in jails even when their punishment is over. This phenomenon of violation of Fundamental rights of Undertrials and the persons languishing in jails even after the period of punishment is over can be attributed to many reasons, not limited to the given below.
- Lack of knowledge of law among undertrial prisoners and prisoners who have completed their period of punishment but still imprisoned.
- Lack of knowledge of provisions of law relating to bail.
- Lack of knowledge of laws coming into fray by way of judicial rulings and precedence among the pleaders.
- Courts being caught in the proceedings which are archaic in nature.
- Court’s insensitivity in dictating the terms of bail bond, which are beyond the reach of the target group, and hence not released contrary to the Hon’ble Supreme Court’s judgment in Hussain Ara Khatoon case.
- Criminal Courts being not sensitized towards the human rights.
- Cumbersome and no people processes involved in the court especially in dispensing of justice.
- Availability of in-sufficient number of courts.
Situation at hand 
More than three-fourths of India’s jail inmates are undertrial prisoners, according to data released by the National Crime Records Bureau (NCRB). Of the 554,034 prisoners, 427,165, or 77 percent, were undertrials in 2021. This was a 14.9 percent increase from 371,848 undertrials in prison in 2020. District jails had the highest share of undertrials, accounting for 51.4 percent of the total, followed by central jails (36.2 percent) and sub-jails (10.4 percent). Uttar Pradesh has reported the maximum number of undertrials (21.2%, 90,606 undertrials) in the country followed by Bihar (13.9%, 59,577 undertrials) and Maharashtra (7.4%, 31,752 undertrials) at the end of 2021. Among the 4,27,165 undertrial prisoners, only 53 were civil inmates.
Among the undertrial prisoners under IPC crimes (3,24,499) lodged in various jails in the country, around 64.3% (2,08,595 inmates) of undertrial prisoners have committed Offences affecting Human Body followed by prisoners of Offences against Property (29.0%, 94,160 inmates) as on 31st December, 2021. Among the undertrial prisoners of Offences against Women, the highest number of inmates were undertrial for Rape (63.2%, 44,134 inmates) followed by undertrials for Dowry Death (20.6%, 14,402 inmates) at the end of 2021. Among the undertrial prisoners under SLL crimes (1,02,613) lodged in various jails in the country, the highest number of inmates were undertrial under Liquor & Narcotics Drugs – Related Acts (65.2%, 66,881 inmates) followed by undertrial inmates under Arms/Explosive – Related Acts (14.3%, 14,677 inmates) and undertrial inmates under Crime Against SC/ST – Related Acts (4.7%, 4,846 inmates) at the end of 2021.
A total of 14,68,627 undertrial prisoners were released during 2021, out of which 95.0% of undertrial prisoners (13,95,635) were released on bail. Percentage share of Undertrials Released on Bail decreased by 0.4% in 2021 over 2020 (95.4% in 2020). A total of 24,507 undertrial prisoners were released based on acquittal on first instance and 14,148 undertrial prisoners were released subsequent to the acquittal on appeal. No undertrial prisoners were extradited to foreign countries during 2021. A total 591 undertrial prisoners were released under Section 436A of CrPC during 2021.
A total of 4,23,015 Indian national inmates consisting of 4,05,841 Males, 17,112 Females and 62 Trans genders were confined in various jails in the country at the end of the year 2021. Uttar Pradesh has lodged the highest number of Undertrial prisoners (90,274) followed by Bihar (59,455) and Maharashtra (31,250) accounting for 21.3%, 14.1% and 7.4% of the total Indian undertrials (Chart 3.4, Table 3.1). Majority of Undertrials were in the age group 18 Yrs. – Below 30 Years (48.0%) (2,02,930) followed by the age group 30 Yrs. Below 50 Years (40.9%) (1,73,045) and the age group 50 Years & above (11.1%) (47,040).
Prolonged undertrial detention leads to several concerns which adversely impacts the lives and livelihood of those incarcerated. Prolonged undertrial detention also increased the risk of torture or other ill-treatment.
Article 39-A of constitution of India, under the Directive Principles of State Policy, provides for Equal Justice and Free legal Aid. In the light of the Legal Services Authorities Act,1987 the free legal aid is being provided to poor, under-privileged community, children and women. The majority of defendants are illiterate, lack basic knowledge, belong to a lower social stratum, or are in unstable financial situations. Though Directive Principles are not legally enforceable the way the Fundamental Rights are, High Courts and Supreme Court has seen lack of access to justice as violation of Fundamental Rights, specially, Article 21 and 14 of the constitution of India.
Sambhavna- CRACR & PD’ s concept of Access to Justice
Justice must be finally delivered but at the same time it is also important that the beneficiary shall, at every step involved in reaching to justice, have a feeling that justice is being delivered to him/her and this goes far beyond actual delivery of justice and continues till the target group is effectively rehabilitated in the family and is also socially reintegrated.
Sambhavna-CRACR& PD’s Experience in relation to Access to Justice
It would be relevant to mention here that Mr. Shashank Shekhar, Advocate and Settlor & Life Time Founding Trustee, CRACR & PD and Director Ace Advocates (OPC) Pvt. Ltd. was instrumental in organising Bal Samvad Lok Adalat in the state of Bihar by the order of the Hon’ble Patna High Court and because of which hundreds of children were released from various Observation Homes in Bihar and thousands of cases related to petty offences where settled, through Lok Adalat’s, within a day.
Charting a strategic intervention to enable access to justice
- Speeding up justice with legal aid and improved judicial processes: On November 26, 2022, President Droupadi Murmu in her valedictory address at the Constitution Day celebrations held by the Supreme Court brought the spotlight back on overpopulated prisons. “Who are these people languishing in jails?” she asked the gathering that included Union Law Minister Kiren Rijiju and Chief Justice D.Y. Chandrachud. She then replied: “They are the people who don’t know anything about fundamental rights, the preamble, and fundamental duties.”
- Policy Strategy for Grant of Bail: Supreme Court has advocated for the release of undertrial prisoners either by upholding the principle of presumption of innocence and the right to a speedy trial or allowing the liberty to be bargained with the admission of guilt through the process of plea bargaining. Hon’ble Supreme case has times and again held that bail shall be a rule not an exception. The same is being hardly followed.
- Use of Alternative Dispute Redressal Mechanism like mediation, reconciliation, negotiation and arbitration be involved in case of petty offences.
- Strengthening of legal services: Legal information centres, legal aid offices, programmes that teach people to represent themselves, and paralegal-based initiatives that employ and train people to act as advocates and mediators can all help raise public awareness of the legal system. Use paralegal assistance programmes run by NGOs to supplement legal aid programmes. Legal counsel can be given to suspects or accused people who are brought before the informal court system by paralegals who have received training in criminal law and procedure. They participate in police interrogations and attend court proceedings to offer counsel (although they do not represent the accused). Law students and recent graduates may also offer legal assistance through their law schools or legal resource centres.
- Role of NGOs: Since it is not possible for the government to reach to each and every person in the target group, it is the onus obligation of the NGOs to assist the formal legal system by way of paralegal assistance programmes run by NGOs to supplement legal aid programmes. NGOS having reach in all the villages can approach the needy persons, guide them, make them legally aware and if needed participate in legal proceedings.
- NGOs to assist in family and social integration of the target group and further to develop resilience in them by providing psycho -social support to them.
- Providing family counselling and Psycho social support to the family members of the target group.
- Providing all prisoners with required assistance, direction, counselling, support and protection.
- Assist the outgoing prisoner to overcome the mental, social and economic turmoil.
- Removal of social stigma that got attached with him and with his/her family because of the incarceration.
- Making the released person understand that he needs to adjust his/her habit, attitudes, approaches and also values with that of the rational appreciation by a society. Also, he/she has social responsibilities and obligations towards the community.
- Assisting the released individual with satisfactory re-adjustment and re-settlement with his not only his/her domestic or private life, but also with his/her community tie.
- Ensure wholesome rehabilitation assistance post-release.
- The prolonged un -justified incarceration of a person is disastrous for the family and specially for the children and that in turn intergenerational deprivation of justice to the family.
 Data source: NCRB Report 2021