The Human Rights of Under Trial Prisoners in India

By | May 1, 2021
Rights of Under Trial Prisoners in India

In this article, the human rights of Under Trial Prisoners in India are discussed in detail.

In India, the government took various measures in the post-colonial period to reform prison institutions to correctional institution and to equally promote the rights of the prisoners in the country. However, the treatment of under trial prisoners is still not satisfactory in the present times. Many often, the human rights of under-trial prisoners are violated which is the most basic and inalienable rights available to every individual by virtue of being born as a human being. Human rights are natural rights of all humanity to live without any discrimination on the basis of sex, caste, ethnicity, language, etc.

I. Introduction

The objective of a criminal justice system in any country is to protect the rights of society, victims, as well as the prisoners, convicts, and those under trials. It is important to treat the human rights of both the victims and the prisoners equally, just because the position of the prisoner due to some legal wrongdoing, the concerned person can’t be bared of their basic fundamental and human rights.

Talking specifically about under-trial prisoners, they are referred to those people who are facing a case trial in any court of law and during such a trial the person is kept in judicial custody in prison. In other words, under trial prisoners is one who has been arrested for some criminal offense and is waiting to appear before the magistrate. It is to note that such an under trial prisoner is only an accused in the case and his or her guilt has not yet been proved, hence he can’t be called a convict.

As per the definition of under trial prisoners given by the 78th Report of the Law Commission of India, 1979:

“Undertrial is a person who is in judicial custody or remand during investigation. An undertrial prisoner is the one who has been detained in prison during the period of investigation, inquiry or trial for the offence they are accused to have committed.”[1]

The population of under trial prisoners in India is estimated to be the 18th highest in the world and 3rd highest in Asia.[2]Although prisoners, these individuals have certain fundamental human, this can’t be taken away in any situation. Some of the inalienable human rights of under trial prisoners in India are discussed below:

II. Rights of under trial prisoners in India

The Constitution of India safeguards the basic human rights of the prisoners in the country. Some of the constitutional provisions that guarantee the fundamental rights of prisoners are listed below:

  • Article 14 of the Indian Constitution provides for equality before the law and equal protection of laws. The provision states that “State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.[3]
  • Article 19 provides for the protection of certain freedoms, stating: “All citizens shall have the right– (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (g) to practice any profession, or to carry on any occupation, trade or business.”[4]
  • Article 20 of the constitution provides for the protection of rights in respect of conviction of accused for offences, it states that “(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself.”[5]
  • Article 21 protects the fundamental right to life and personal liberty of an individual. It states “No person shall be deprived of his life or personal liberty except according to procedure established by law”.[6]
  • Article 22 provides for the rights of arrested and detained persons. It states that “(1) No person who is arrested shall be detained in custody without being informed, as soon as may not be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond said period without the authority of a magistrate.”[7]
  • The Seventh Schedule of the Constitution, Article 246 and in the state List, Entry No. 4 provides for law-making power of state government on different subjects including Prisons.

1. Right to a speedy trial

The right to speedy trial of an undertrial prisoner is a fundamental right as implied in Article 21 of the Indian Constitution. The right to speedy trial ensures that the prisoner receives a just, fair and reasonable trial process. In the case of Hussainara Khatoon (II) v. Home Secretary, State of Bihar[8], the Supreme Court while adjudging the case of under trial prisoners who had suffered long incarceration upheld the trial procedure not just, fair, or reasonable so as to satisfy with the requirement of Article 21.

2. Rights against Inhuman Treatment of Prisoners

Human rights, being a fundamental right is part and parcel for individuals to love with human dignity. Article 21 of the Constitution specifically provides that no individual shall be deprived of his right to life and personal liberty except according to the procedure established by law. The two fundamental rights here, i.e. the right to life and liberty, is sacred and guaranteed right under our constitution and through many constitutional judgments over the years, the rights have been held to also include the right to live with human dignity.

The right implies a guarantee against torture and assault of the prisoners in jail by the state or its functionaries. The Apex court in several cases has taken serious consideration of the inhuman treatment of prisoners and has issued appropriate directions to prison and police authorities to strictly comply with safeguarding the rights of the prisoners in police custody.

The Supreme Court read the right against torture and inhuman treatment into Articles 14 and 19 of the Indian Constitution. The court in the landmark case of D.K Basu observed that “the treatment of a human being which offends human dignity, imposes avoidable torture and reduces the man to the level of a beast would certainly be arbitrary and can be questioned under Article 14”.[9]

3. No handcuffing

In absence of any justifying circumstances, no under trial prisoner or arrested person should be subjected to handcuffing. To quote the Supreme Court, “when the accused are found to be educated persons, selflessly devoting their service to the public cause, not having a tendency to escape and tried and convicted for bailable offence, there is no reason for handcuffing them while taking them from prison to court.”[10]

4. Right to be informed and to meet Family members and friends

The Right to Life and Personal Liberty enshrined under Article 21 of the Constitution can’t be restricted to mere animal existence. It essentially means something much more than just physical survival and the right to be informed and meet with family members and friends is implicitly part of the right to personal liberty embodied under Article 21.

Moreover, the constitutional right under Article 22(1) that ‘no person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice’ can be traced as an enshrined legal right under section 304 of Criminal Procedure Code. In Sunil Batra (II) v. Delhi Administration, the Apex Court recognized the fundamental right of prisoners to meet their family and friends subject to search and other security criteria. The court observed: “Visits to prisoners by family and friends are a solace in insulation, and only a dehumanized system can derive vicarious delight in depriving prison inmates of this humane amenity.”[11]

For effective enforcement of the fundamental rights to be informed and to meet Family members and friends are inherent in Articles 21 and 22(1) of the Indian Constitution, the court issues the below-outlined requirements:

  1. “An arrested person being held in custody is entitled if he so requests to have one friend relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained.
  2. The Police Officer shall inform the arrested person when he is brought to the police station of this right.
  3. An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.”[12]

5. Right to have Legal aid

According to decisions of the Supreme Court of India, the right to have an interaction with the lawyer of his choice accrues to the arrested person from the time of the arrest. In a series of cases, the court upheld the scope of the right of the prisoners or detainees to have communication with family members, relatives, friends, and legal counsel.

In the Hussainara Khatoon case, the Supreme Court held that every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation, has the Constitutional right to free legal services provided by the state. Consequently, the state is also under its constitutional duty to provide counsel to the accused person, if the needs of justice so require. No right to enjoy free legal services will vitiate the trial of the prisoner because it will be in clear contravention with Article 21.

6. Narco Analysis/Polygraph/Brain Mapping

The Supreme Court in the case of Selvi v. State of Karnataka[13] has upheld the unconstitutionality of Narco analysis, Polygraph test, and Brain Mapping and also violative of human rights. A person can only be subjected to these tests when there is a clear assent from his/her side and the test results can only be used in furtherance of the investigation but not as evidence in the court. The court considered the tests violative of Article 20 (3), which provides that a person can’t be forced to self incriminate, meaning he can’t be compelled to give evidence against himself.

7. Right to Legal Aid

Although the Indian Constitution doesn’t expressly provide the Right to Legal Aid, the Indian judiciary has shown sensitivity towards poor prisoners on account of their poverty and financial incompetency to engage the legal counsel of their own choice. With the 42nd Amendment Act, 1976, the right to free legal aid was added as one of the Directive Principles of State Policy under Article 39A, part-IV of the Constitution. The state government is under duty to provide legal services to the accused persons as per Articles 21 and 39-A read with Article 142 and section 304 of Cr.P.C.[14]

III. Conclusion

In conclusion, a close review of the series of decisions given by the Indian Judiciary in regards to the protection of human rights of under trial prisoners suggests that the judiciary has been playing a significant role as a rescuer, especially considering the situation when the legislature and executive have failed to address the issues of the people. To this end, thankfully, the Apex Court of India has come forward for the people to take corrective measures and give necessary directions to the legislature and executive wing of the country.

From the proximate perusal of the aforementioned contribution, it is not incorrect to say that the Indian Judiciary has been relatively helpful and very sensitive regarding the protection of the human rights of the people in the country. The Judiciary has now put forth the feature of judicial activism and devised similar remedies in order to prevent the vindication of the most significant human rights to life and personal liberty.


[1] Law Commission of India, 78th Report on Congestion of Under-Trial Prisoners in Jails, Available Here (Last Visited April 30, 2021).

[2] International Centre for prison studies, Highest to lowest – pre-trial detainees/remand prisoners, Available Here

[3] INDIAN CONST. art. 14.

[4] INDIAN CONST. art. 19.

[5] INDIAN CONST. art. 20.

[6] INDIAN CONST. art. 21.

[7] INDIAN CONST. art. 22.

[8] AIR 1979 SC 1369.

[9] D.K. Basu v. Union of India, AIR 1997 SC 610.

[10] Prem Shanker Shukla v. Delhi Administration, AIR 1980 SC 1535.

[11] Sunil Batra (II) v. Delhi Administration , (1978) 4 SCC 409.

[12] Ibid.

[13] (2010) 7 SCC 263.

[14] Madhav Hayawadan Rao Hosket v. State of Maharashtra.


  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
Author: Deepshikha

Deepshikha is a law student from National Law University, Odisha.

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