By- Bhoomi Singh, LLB Student, Symbiosis Law School, Pune
Abstract
A case in point illustrating the hardships faced by undertrial detainees in India is the case of 35-year-old Shishir who hails from Palghar (this is a pseudonym to keep the identity of the concerned person a secret). He has spent nearly three years in prison because a murder case has been registered against him, yet his trial had not begun. Finally, in October 2024, he was released after getting bail, something that he was not able to get for years because the amount of bail was set at Rs. 25,000. This plight is not only exclusive to Shishir but is also faced by many other Undertrial prisoners in India.
This paper examines the legal framework governing prison advocacy and the treatment of undertrial prisoners in India. It posits that it is not sufficient to just evaluate the efficacy of legal aid solely based on the provision of the legal aid per se but must take into account the timing of the provision of the same. If legal aid reaches an undertrial prisoner only after the critical period has passed, then it may not prevent the arbitrary detention but instead carry the effect of legitimising it.
Using a doctrinal approach and qualitative analysis of legal and prison data from 2022 to 2026, this study investigates whether procedural delays stem from systemic design flaws rather than administrative failures. The findings indicate that Indian legal aid currently functions as a symbolic gesture rather than a substantive mechanism for detainee justice.
Keywords- Undertrial Prisoners; Legal Aid; Prison Advocacy; Procedural Delay; Article 21; Access to Justice
Introduction
The integrity of any criminal justice system depends on the ability to protect the right to personal freedom and administer justice appropriately. In India, both aspects are protected by Article 21 and Article 22 of the Indian Constitution, which guarantees life and liberty to all citizens and the right to free legal aid. Nevertheless, in practice, great difference is observed in both of the aspects as far as the functioning of the Criminal Justice System in India is concerned. According to legal standards, the majority of inmates are Under Trial Prisoners, which means they are presumed innocent until proven guilty. According to 2022 statistics, the majority of prison population, which constitutes 75.8% are Under Trial Prisoners. Furthermore, the Under Trial Prisoners remain in prison for considerable periods of time without proper assistance or legal aid. The disparity in access to justice is not the result of the existing law or citizens’ rights but is related to the way in which the rights provided by the laws are implemented.
The concept of legal aid is acknowledged to be an effective institutional process for tackling this problem. According to Article 39A of the Constitution, the provision of legal aid must be provided free of cost and the Legal Services Authorities Act of 1987 should be implemented. Legal aid aims to ensure that economically disadvantaged persons do not face any hindrances while striving for justice on account of their social status. However, even though legal aid may be available, it does not necessarily mean that justice will be secured , as legal help is required immediately after arrest.
The current research reveals that the delay in speeding up the prisoners' rights reveals the basic weakness in the criminal justice process. The existing scheme allows legal aid to become reactive regarding certain events, so the detention happens before any assessment. As a result, detention through custody is chosen in place of the punishment by the court, as adjudication becomes the final step in ensuring legality of the detention. With a critical analysis of constitutional grounds, legislative framework, judicial interpretation of law, and relevant issues, it becomes clear that the access to justice can be provided without infringement of the principle of presumption of innocence.
Literature Review
There is no doubt that research on the problem of undertrial detention in India shows the structural nature of the issue, even though the opinions of scholars about the point of departure of this structure differ. In terms of the first relevant study on this matter, it should be mentioned the 78th report of the Law Commission of India, where the problem of overcrowding of undertrial prisoners was discussed and it was pointed out that undertrial detention results from arrest for a crime and inability to gain a bail. Therefore, the bail process should be regarded as the obstacle rather than some mistakes in administration of this process. Adil Aziz Khan, after several decades, shares this view and mentions that the majority of prisoners in India are undertrials and suffer from long detention as a result of inefficiency of the bail process, case backlog and social and economic barriers to obtaining bail.
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