Detained Without Trial

India’s justice system, hobbled by delay and weak legal aid, has worryingly transformed procedure into a tool of prolonged imprisonment.

Forget about ‘celebrity’ cases like Umar Khalid, Sharjeel Imam, Gulfisha Fatima and Shifa-ur-Rehman who are reportedly imprisoned without a charge-sheet or presentation in court for years together. They are only the most visible edge of a far larger failure. Nearly 70 percent of India’s prison population consists of undertrials, many of whom have spent years behind bars without conviction, and often without a completed charge-sheet.

The Indian law statutes state that individuals cannot be held indefinitely without a formal charge. The specific time limits vary from country to country and failure to file a charge sheet within the statutory period often entitles the accused to default bail.

The criminal justice system in our country is based on two principles. (a) Any person arrested is presumed to be innocent unless proven guilty and (b) It is the duty of the state and the court to see that justice is done to the people and the victim. To achieve these principles, the process of investigation and trial should be completed without any delay. But these are not fulfilled and undertrial keep languishing in jail for years. International law draws a clear line against arbitrary detention.

From the Universal Declaration of Human Rights to the International Covenant on Civil and Political Rights, the rules are blunt: detainees must be told promptly why they have been arrested, produced quickly before a judge, and cannot be held endlessly without charge. After a prescribed period, they acquire an ‘indefeasible’ right to bail.

Rights Ignored

India’s own law broadly mirrors these guarantees. Police custody cannot exceed 24 hours without judicial approval and is capped at 15 days. The state must file a charge-sheet within 60 or 90 days, failing which default bail applies. Only preventive-detention laws stretch this further. Yet undertrials continue to languish in jail for years in quiet defiance of both constitutional promise and international norm.

The poor find it difficult to furnish bail even without sureties because the amount fixed by the court is so excessive. Hence in many cases, the poor are unable to satisfy the police or the court about their solvency for the amount of the bail, and where the bail is with sureties as is in most cases, it becomes an impossible task for the poor to find persons sufficiently solvent to stand as sureties. [‘Justice Under Trial - A Study of Pre-Trial Detention in India’, Amnesty International, 5(2017)]

Article 21 protects prisoners from cruel treatment and torture. Additionally, it guarantees inmates prompt trials. Article 22: In addition to having the right to counsel and legal representation from any attorney of their choosing, a detained individual must be quickly informed of the grounds behind his/her arrest.

Missing Counsel

A recent study of two central prisons in Pune and Nagpur offers a bleak snapshot. Between 2019 and 2024, forty-one percent of inmates had no access to a lawyer; among undertrials, only eight percent received legal representation. More than half had no basic documents relating to their own cases. Scale this across India, and the pattern is unlikely to improve.

West Bengal sits near the top of this grim league table. According to the National Legal Services Authority, roughly seventy-eight percent of its prisoners are undertrials. Its jails are dangerously overcrowded and unsanitary. Much of this congestion is artificial: many inmates might never have remained behind bars had free legal aid functioned as intended. Instead, those not convicted are forced to survive for years in the same suffocating spaces as hardened criminals.

According to Articles 21 and 39(2) of the Indian Constitution, no one should be deprived of a fair trial and this would lead to equality before the law on the one hand and a safeguarding of the Constitution. This marks a democratic step toward equality of all under the law.

Yet, if one pays attention to the social background of these undertrials, one can understand why these undertrials can hardly get justice. 77 percent of those imprisoned never completed their schooling, most of them belong to low castes or are Dalits. Most of them are not even aware that they can get legal aid free of cost. And tragically, the family and relatives of those jailed have cut off all connections with them.

More than 50 percent of these undertrials are victims of some physical and mental disability or disease and most of the mental issues are traced back to being forced to live in overcrowded, dirty cells, and suffer physical and mental torture by the prison staff. Accepting torture as the main cause for mental problems, the Calcutta High Court last year had ordered that all prisoners be provided with a specialist counsellor, or a special nurse or trained social worker within 24 hours of imprisonment. But the question is how can these counsellors be appointed to counsel them? How many will agree to give free or low-cost service? How will the infra-structure be created? And lastly, how will the costs for the infra-structure be sourced and covered?

Justice is not limited to bringing a case in court. The basic principle of bringing an undertrial to court is to prove that any and all undertrials have the right to protection under the law and that it is not any act of philanthropy by the state or central administration.

Most undertrials are not even aware that they have this right. They are not made aware of their legal rights i.e. the right to free legal aid, the right to get the legal practitioner of their choice, the right to bail, etc. And are those manning the legal and judiciary system aware of this right? Or, is it easier for them to look the other way?

(The author is a noted film scholar who writes extensively on social issues. She is a double-winner for the National Award for Best Writing on Cinema. Views personal.)