The Gnawing Silence of Poor Undertrial Prisoners

The idea of ensuring speedy trial is not new in India, but the modern concept's evolution took place in the USA. In the USA, the Right to Speedy Trial is guaranteed by the Constitution's Sixth Amendment; for further enlargement of the right, the Speedy Trial Act, 1974 was enacted. 

Undertrials languishing in prisons for far too long is an open wound in a democracy. Their right to be released without bail where they cannot afford bail is a constitutional right, says the SC.

The concept of speedy trial is also accepted by various international institutions like the European Commission on Human Rights. 

In India, there is no special Act to ensure implementation of this right. However, in the Cr.P.C., there are various provisions that are intended to achieve a speedy resolution of disputes. For example, the concept of Plea bargaining. 

Right to Speedy Trial in India is accepted as fundamental rights in various cases. The Apex Court has developed various aspects of the concept.

In the case of Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, AIR1979 SC 1369, a 3-judge Bench of the SC held that speedy trial was accepted as a fundamental right. In their petition for issue of a writ of habeas corpus, the petitioners stated that a large number of men and women including children were in jails for years awaiting trial in courts of law and  that  the offences,  even  if proved, would  not warrant  punishment for  more than  a few months. Although sufficient opportunity was given, the State did not appear before the Court. The Court held that where under-trial prisoners have been suffering in jail for a duration longer than prescribed, if convicted, their confinement or detention in jail is wholly unjustified and a grave violation of Article 21. It is the responsibility of courts to maintain checks and balances on under-trial prisoners and bring them to trial. “It is a travesty of justice that many poor accused, … are forced into long cellular servitude for little offences because the bail procedure is beyond their meagre means and trials don't commence and even if they do, they never conclude”. “This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the courts is so unrealistically excessive that in a majority of cases, the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties”.

Reasons like over-burdened Courts, inadequate resources, and fiscal deficiency cannot be the reasons for deprivation of a person’s freedom. The SC held that there was urgent need for a clear and explicit provision in the Code  of Criminal  Procedure enabling  the release, in appropriate cases, of an  under trial prisoner on his bond without sureties and without any monetary obligation.

Justice P.N. Bhagwati observed that: "…  even under our Constitution, though the speedy trial is not explicitly identified as a fundamental right, it is implied in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India, 1978 AIR 597. We have held in that case that Article 21 confers a fundamental right on every person not to be denied of his life or liberty except following the procedure established by law and it is not sufficient to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be 'reasonable, fair and just'. If a person is deprived of his liberty under a not 'reasonable, fair or just' procedure, such deprivation would be violative of his fundamental right under Article 21. He would be entitled to enforce such fundamental rights and secure his release.”



India need to consider the 221st report of Law Commission of India and enact a Speedy Trial Act as soon as possible, so it can serve two objectives: First, to safeguard the accused’s right to get free trial and prevent poor people from languishing in jail for an indefinite time before trial. Second, to provide right to equality in reference to right of accused’s life, liberty and property which are at stake in criminal proceedings.

Rajesh Haldipur
Rajesh Haldipur

Founder, Law Gyani

Rajesh is a qualified CA & CWA. He has served as a Director of PricewaterhouseCoopers, a Director of a large urban co-operative bank and Dean of a B-School over the years. He has taught Finance for over 20 years & trained participants from several Companies and B-Schools. He is an educator and a learner (he believes both are inextricably intertwined), and a knowledge product developer. Law Gyani, which he has founded to help Law Students with their exam preparations, and to understand nuances of the law.

Shraddha Saxena
Shraddha Saxena

Law Student, Legal Intern at Law Gyani

Shraddha is a law student and the founder of Vidhik Sahara. She usually writes on prominent socio-legal issues.


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