In India we believe in the cardinal principle of “1000 culprits can escape, but, one innocent should not be punished” but in reality it can be said that the long detention of undertrials’ not only violates the right to liberty guaranteed to every person but it also rip apart their human right. Section 436-A of the Code of Criminal Procedure has been enacted to solve the problem faced by undertrials’.

The Undertrial prisoners are those prisoners who are arrested for some crime and are ongoing a trial or are waiting to appear before a magistrate. Mostly these undertrials’’ belong to poor and downtrodden part of the society, as they are unable to pay the security bond and are being held in custody.

Generally, the undertrials’ detention is ordered in the cases where the offence committed is severe and grave, or there is sufficient apprehension that the accused may try to temper the evidence or impede the course of justice, or if gets bail, may commit the same offence/other offence. Our criminal justice system is based on the principle “innocent until proven guilty” and the person detained has a right to trial within a reasonable time. But the system fails in complying with these principles as the undertrials’ keep on languishing in jails waiting for their trial to began and exposure of the accused to the jails way before their conviction impact in a bad manner, pre trial detention also disrupts the lives of their family and in most cast cases economically damage their family.

The problems faced by undertrials’’ in India are as follows:

  1. The first and foremost problem is that the undertrials’ are detained with the hardened criminals and in such a case there is chance of a first time offender or circumstantial offender to turn into a criminal. Guidelines are there to keep the undertrials’ away or in other establishment than the convicted prisoners but due to lack of separate establishment and man power they both are kept together.
  2. Overcrowding leads to shortage of place which further leads to unhygienic environment for a human to live. Different survey shows that mostly the death in jail occurred due to illness.
  3. Lack of medical treatment is also a problem that is faced by these prisoners. In the recent case of Stan Swamy’s custodial death, his bail was denied and also his medical tests were not done properly and even the court denied providing him straw and sipper. Moreover making him travel from Ranchi to Mumbai may have affected his health badly as he was already suffering from Parkinson disease.
  4. Sexual harassment is also prevalent in jail premises in India. As the convicted persons are being held there for a long period of time that too in a same gender company. They then try to fulfill their sexual desires by preying on the weak and young prisoners and generally these young prisoners are undertrial.
  5. Sometimes the undertrials’ are the only bread earner in their family and when are being held in prison awaiting trial, their family crave for food and we all aware of the fact that hunger carves the path that leads to criminal world. Thus their children may in search of bread and butter enter in the criminal world.

From the above it is quite clear that the administration has not done their work properly as well as there is lack of infrastructure. So, reforms can be done in way like building separate jails for the undertrials’ or by making separate chambers for them in the existing jails. It is also my suggestion that a thorough medical examination of the accused should be done in order to provide them the basic medicines and environment. And as far as delay in justice is concerned, it is a long term process but by making reforms like putting limitations on courts to complete the trial within particular time frame like provided by the Code of Criminal Procedure for completion of investigation by police under section 167. Although the above limitation was not compulsory police may exceed that limit but the right of the accused is saved by granting him compulsory bail. Imposition of this kind of limitation is not that difficult, as the criminal justice system in Scotland have such kind of limitation on the courts. For the time being upholding home arrest for undertrials’ in less severe cases could be helpful for both the system and the accused.

The judiciary has tried to overcome this issue and in furtherance of that the Supreme Court of India opined in the case of Hussainara Khatoon v. Home Secretary, State of Bihar, that speedy trials especially in criminal matter are the fundamental right of the parties and asked the state authorities to take positive steps in order to enforce this fundamental right.

Also in the famous case of Bhim Singh v. Union of India, a three-judge bench of the Apex Court held that effective use of Section 436-A requires to be done, the court further directed that in each district the Magistrates or sessions judge should conduct one sitting each week in the prisons under his jurisdiction for two months and made a record of those undertrials’ who have completed half period of maximum term or maximum term stipulated for this offence and pass an appropriate order to release them on bail.

In order to conclude, the undertrials’ are only accused and are not a convict, so treating them like a convict is not fair in any way. Also due to the conception of these undertrials as convicts they are harassed by the police, that’s why reforms are required and the strict action needs to be taken against administration in case of their failure.

The problem of overcrowded jails can be solved by speeding up the trials; nevertheless a separate jail for undertrials’ is need of the hour.


  • 78th Law Commission Report, 1978.
  • (1980) 1 SCC 731
  • (2015) 13 SCC 605

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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