The Persistent Dilemma of Undertrial Prisoners in India

Picture this: a person is arrested, taken to jail, and then – nothing. No trial. No conviction. No release. Days turn into months, and sometimes months turn into years. This is the everyday reality for a staggering number of people locked up in Indian prisons right now. They are called undertrial prisoners – individuals held in custody while awaiting investigation or trial, who have not yet been found guilty of any crime. According to the Prison Statistics India 2022 report published by the National Crime Records Bureau (NCRB), 4,34,302 out of 5,73,220 prisoners – a full 75.8% of India’s prison population – are undertrials. That is three out of every four people behind bars who have not been convicted of anything. Understanding why this happens, who it happens to, and what the law has done about it is essential for anyone serious about criminal justice in India.

The scale of the problem
Who bears the burden? The disproportionate impact on the marginalized
Caste and community
Youth
Poverty and the bail trap
The constitutional and legal framework
The Hussainara Khatoon judgment (1979): a watershed moment
Constitutional provisions at stake
Section 436A CrPC and Section 479 BNSS: the half-time rule
Systemic barriers to implementation
The human cost
What still needs to change

The scale of the problem

The undertrial crisis in India is not a new phenomenon, but it has been getting progressively worse. Over the past decade, the share of undertrials in Indian prisons climbed from 66% in 2012 to 76% in 2022, according to IndiaSpend’s analysis of NCRB data. The sharpest single-year jump occurred during the COVID-19 pandemic year of 2020, when courts virtually ground to a halt.

As of April 2024, nearly 5,30,000 prisoners were lodged in Indian jails, of whom 74.6% were undertrial. Indian prisons, designed for around 4,36,266 inmates, were operating at 131% occupancy – a system bursting at the seams, largely with people who have not been convicted of anything.

Uttar Pradesh carries the heaviest burden, with 94,131 undertrials out of 1,21,609 total prisoners, followed by Bihar with over 57,000 undertrial prisoners out of approximately 64,000 total. In several states and union territories, the proportion is even more alarming – in Jammu & Kashmir, for example, undertrials make up over 91% of the prison population.

Who bears the burden? The disproportionate impact on the marginalized

The data makes clear that pre-trial detention in India is not a random affliction – it falls heaviest on those least equipped to fight it.

Caste and community

In 2022, approximately 66% of all undertrial prisoners belonged to marginalized communities – Scheduled Castes, Scheduled Tribes, and Other Backward Classes (OBCs). The OBC share has risen continuously over the past decade. When minority religious communities are added to this count, the figure climbs beyond 85% of the total undertrial population. Over-policing of certain communities, caste prejudice, and institutional biases in the justice system all contribute to this deeply skewed outcome.

Youth

Close to 49.7% of undertrial prisoners in 2022 were between 18 and 30 years of age – a figure that has been steadily increasing. Young people, often first-time offenders with no prior exposure to the legal system, find themselves in a system they cannot navigate and cannot afford to challenge.

Poverty and the bail trap

Perhaps the most insidious driver of prolonged undertrial detention is poverty. Many individuals charged with bailable offences – offences where they are legally entitled to be released on bail – remain in jail simply because they cannot afford to pay the bail amount or hire a lawyer. As the Supreme Court itself observed decades ago in the landmark case of Hussainara Khatoon v. State of Bihar, magistrates sometimes insist on monetary bail with sureties that poor undertrial prisoners are unable to furnish, effectively shutting them out of any possibility of release from pre-trial detention.

The constitutional and legal framework

The Hussainara Khatoon judgment (1979): a watershed moment

The most foundational case in the history of undertrial rights in India is Hussainara Khatoon & Ors v. Home Secretary, State of Bihar (AIR 1979 SC 1369). Advocate Kapila Hingorani filed a writ petition before the Supreme Court on behalf of undertrial prisoners in Bihar’s jails, many of whom had been detained for periods longer than the maximum sentence they could have received even if convicted. Justice P.N. Bhagwati, delivering the judgment, declared that the right to a speedy trial is an integral part of the fundamental right to life and personal liberty under Article 21 of the Constitution. The Court further held that free legal aid is a constitutional obligation – not charity – and mandated the State to provide lawyers to undertrial prisoners who could not afford one. The Court ordered the immediate release of prisoners who had already served more time than their maximum possible sentence.

This judgment remains the bedrock of undertrial jurisprudence in India. It established that the State cannot use poverty as a reason to deny someone their freedom pending trial, and it introduced the concept of judicial activism in prison reform.

Constitutional provisions at stake

Multiple constitutional guarantees are directly implicated when a person is held as an undertrial for an excessive period. Article 21 protects the right to life and personal liberty and has been interpreted to include the right to a speedy trial and protection from torture or inhumane treatment. Article 22 guarantees an arrested person the right to be informed of the reasons for arrest and to consult a lawyer of their choice. Article 39A mandates that the State provide free legal aid to ensure justice is not denied on account of economic or other disabilities. Prolonged undertrial detention strikes at all three provisions simultaneously.

Section 436A CrPC and Section 479 BNSS: the half-time rule

In 2005, Parliament inserted Section 436A into the Code of Criminal Procedure, 1973, providing that any undertrial who has spent half the maximum period of imprisonment for the alleged offence in detention must be released on personal bond. This was a direct legislative response to the problem highlighted in Hussainara Khatoon. However, implementation remained weak for years – NCRB data from 2016 shows that only 0.07% of undertrials released that year benefited from Section 436A, with the vast majority getting out through other bail provisions or acquittal.

When India replaced the CrPC with the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 – effective July 1, 2024 – Section 436A was replaced by Section 479 of the BNSS. The new provision retains the half-period rule for most undertrials but introduces a significant improvement: first-time offenders (those with no prior conviction) are now entitled to bail after serving only one-third of the maximum prescribed sentence. The Superintendent of a jail can now proactively move bail applications on behalf of eligible prisoners, rather than waiting for the prisoner or their lawyer to do so.

In August 2024, the Supreme Court ruled that Section 479 of the BNSS would apply retrospectively – covering even those whose cases were registered before July 1, 2024. This significantly expanded the pool of undertrials who could benefit from the provision.

However, Section 479 also comes with notable limitations. Unlike its predecessor, Section 479 explicitly bars relief where investigation, inquiry, or trial in more than one offence or in multiple cases is pending against the accused. Undertrials accused of offences punishable by both death and life imprisonment are also excluded – a stricter exclusion than under the old CrPC, which only barred those facing a potential death sentence.

Systemic barriers to implementation

The law, on paper, provides several routes out of prolonged pre-trial detention. The reality on the ground is far more discouraging. Undertrial Review Committees (UTRCs) – district-level bodies established pursuant to a 2015 Supreme Court order – identified about 24,100 of 5,28,728 prisoners for review in 2024. Of these, 15,777 were recommended for release, but only 7,421 were actually released. That is less than half of those recommended, and barely 1.4% of the total prison population.

Several structural problems explain this gap. There are no automated systems to identify which prisoners qualify for relief under Section 479 BNSS – identification is done manually and is highly inconsistent across districts. A UTRC recommendation does not mandate a bail grant; it merely triggers an application process, and courts can still decline. Many undertrials have no legal representation at all, meaning no one is filing bail applications on their behalf in the first place.

Legal aid clinics established inside prisons by State Legal Services Authorities under the Model Prison Manual 2016 and the National Legal Services Authority are meant to address this gap, but are chronically under-resourced relative to the need. In 2023, the Ministry of Home Affairs launched a cash bail scheme to help poor prisoners who have been granted bail but cannot pay the bail amount – a recognition that even when the court says yes, poverty can still keep someone in jail.

The human cost

Behind every statistic is a person – often young, poor, and from a marginalized community – whose life has been upended without a conviction. The consequences extend far beyond the prison walls. When the earning member of a family is detained as an undertrial, the family is often pushed into destitution. Children may drop out of school. Long periods of incarceration without conviction can cause severe psychological distress, including anxiety, depression, and a deep sense of hopelessness. And in some cases, young or circumstantial offenders who enter prison with no prior criminal background emerge with connections to hardened criminals – the system producing the very outcome it is supposed to prevent.

There is also a systemic cost. The large undertrial population is a major contributor to India’s judicial backlog, which in turn delays justice for everyone – victims, accused, and society alike. Overcrowded prisons make conditions inhumane for all inmates. And as the Supreme Court has repeatedly noted, when the criminal justice system routinely detains people for years without trial, it corrodes public trust in the rule of law itself.

What still needs to change

Despite the reforms introduced by BNSS and the Supreme Court’s supervisory jurisdiction over prison conditions through the ongoing PIL In Re: Inhuman Conditions in 1382 Prisons, the structural gaps remain wide. The reluctance of district courts to grant bail is a documented concern. The identification of eligible undertrials under Section 479 BNSS remains ad hoc and inconsistent. Legal aid, while constitutionally mandated, is patchy in practice. And the problem of police making indiscriminate arrests – often the first link in the chain that leads to prolonged undertrial detention – has not been systematically addressed by any recent reform.

The undertrial crisis is ultimately a mirror reflecting deeper inequalities in Indian society: between the rich and the poor, the powerful and the powerless, those who can navigate the legal system and those who cannot. The law provides the tools to address it. What is missing is the political will and institutional capacity to implement them consistently, at scale, across every district in the country.

What do you think? Given that a majority of undertrials are from marginalized communities who cannot afford bail, does the current legal framework do enough to ensure their release – or does it still place too much of the burden on the prisoner? And if court-level implementation of provisions like Section 479 BNSS remains inconsistent, what mechanisms should be put in place to hold judicial officers and state governments accountable for compliance?

References

PDF 📄

Table of Contents

The scale of the problem 🔗

Who bears the burden? The disproportionate impact on the marginalized 🔗

Caste and community 🔗

Youth 🔗

Poverty and the bail trap 🔗

The constitutional and legal framework 🔗

The Hussainara Khatoon judgment (1979): a watershed moment 🔗

Constitutional provisions at stake 🔗

Section 436A CrPC and Section 479 BNSS: the half-time rule 🔗

Systemic barriers to implementation 🔗

The human cost 🔗

What still needs to change 🔗