Condition of Undertrials in India

A large number of the poor, the Dalits and people from the minority communities are languishing in jail as undertrials because of a property-based bail system and a poor legal aid mechanism. This article suggests ways in which both these tools could be strengthened for speedy dispensation of justice.

Once again the Supreme Court has turned its attention on the plight of poor prisoners and undertrials. On 5 February 2016, its Social Justice Bench directed the government to execute a series of reforms to ameliorate the condition of prisons. The state should engage competent legal aid lawyers, consider the release of undertrials under Sections 436 and 436A of the criminal procedure code and develop information management systems to address overcrowding in Indian prisons, especially in Maharashtra, Uttar Pradesh and Dadra and Nagar Haveli, the Supreme Court said. The legal aid for poor should not become poor legal aid, the bench thundered. It condemned, in unequivocal terms, the anti-poor property-based bail system.¹ It was very categorical when it said: “It is against the spirit of law to incarcerate people only because of their poverty.” It ordered the legal services authority to take up cases of prisoners who are unable to furnish bail and are still in custody.

The following is the common scenario of most undertrials. Shanti Sahu and her 18-year-old daughter were arrested on charges of causing grievous hurt and criminal intimidation to their neighbours on 13June 2015.² They were sent to jail not because their bail application was rejected, but because they were unable to engage an advocate. They secured bail when their employer arranged for an advocate. The court decided to grant bail on the condition of depositing Rs 20,000. It was clear that they would not be able to get out of jail because neither did they possess any valuables, nor could they arrange such a large sum from others.