Undertrial prisoners are those people who are facing trial in any court and during such trials are kept in judicial custody in prison. As per National Crime Records Bureau (NCRB) report, undertrials in prisons increased to 69 % in 2019 from 67 % in 2016. The high proportion of undertrials is indicative of the violation of the right to personal liberty under Article 21 with the process of justice delivery itself becoming a punishment.

Factors behind increasing number of Undertrials

• Lack of judicial infrastructure: The disproportionately small number of courts in a country with a large population together with their inefficient functioning lead to delayed trials. The Judgepopulation ratio stood at 21.03 judges per million people in 2020 in India.
• Sub-standard investigation: Poor quality of investigation due to lack of adequate professionally trained staff in the police often leads to long trials.
• Unnecessary arrests: Law Commission in its 268th report remarked that over 60 percent of arrests are unnecessary accounting for 42.3 percent of jail expenditure primarily due to unnecessary arrest and over policing.
• Inconsistency in the bail system: Right to bail is denied even in genuine cases. Even in cases where the prisoner was charged with bailable offence, they are found to languish in prisons due to exorbitantly high bail amount.
• Poverty and Illiteracy: Majority of undertrials belong to the marginalized communities and are poor and illiterate (28.6%) or dropped out of school before Class 10th (41%). So, a lot of them are not aware of their rights.
• Poor legal aid and representation: Nearly 80% of India’s population qualifies, but only 15 million have been provided legal services and advice under the Legal Services Authorities Act, 1987.

Measures taken to ameliorate issues faced by undertrials:

• Fast Track Courts (FTCs) were established with an aim to reduce the burden of cases from high • courts and district courts and also to provide speedy justice.
• e- Courts to streamline judicial processes, reduce pendency, and help the litigants.
• Fast and Secure Transmission of Electronic Records (FASTER) scheme by which the court would instantly, directly, securely and electronically transmit bail and other orders to the jail authorities, district courts and the High Court.
• The Supreme Court of India under Section 436A of the CrPC passed a judgment directing states to release undertrials who have already served more than half the maximum sentence for • the crimes for which they are imprisoned.
• The Modernization of Prisons scheme was launched with the objective of improving the condition of prisons, prisoners and prison personnel.
• National Legal Services Authority (NALSA) had launched a web application to facilitate the • undertrial prisoners for providing them with free legal services.
• e- Prisons project that aims to introduce efficiency in prison management through digitization.
• Model Prison Manual provides detailed information about the legal services available to prison inmates and also free legal services available to them.

To secure the rights of undertrials, recommendations of India’s Law Commissions need to be followed including separation of law and order and investigation wings of the police department; reducing prison overcrowding by liberalization of bail conditions. Furthermore, recommendations of the Malimath committee need to be given special consideration.