Injustice behind bars: A call for urgent prison reforms in India

The annual prison reports released by the National Crime Records Bureau (NCRB) exhibit statistics on the grim realities of the Indian prisoners. One of the heartbreaking statistics is that of undertrial prisoners, who are not yet convicted.

Look at this figurative data to understand the challenges in Indian prisons.

• Undertrials made up 75.8% of India's prison population in 2022, with over 4,34,000 out of 5,73,000 prisoners.

• Uttar Pradesh had the highest number of undertrials (94,131 out of 1,21,609) followed by Bihar (57,000+) and Maharashtra (31,752). Unfortunately, 66% of undertrial prisoners in 2022 belonged to Scheduled Castes, Scheduled Tribes, and Other Backward Classes (OBCs).

• Muslims, despite being 15% of India's population, accounted for 21.05% of undertrials in 2015 and remained 1 in 6 undertrials from 2013-2022.

This is not just a failure of the Indian prison system and the criminal justice system, but also a fracture in the moral and societal framework. On July 20, 2022, a written question was asked by CPI (M) Member of Parliament, A Rahim in the Rajya Sabha. In reply to this question, the then Minister of State for Home Affairs revealed that 24,134 people were arrested under the draconian Unlawful Activities (Prevention) Act (UAPA) between 2016 and 2020.

As per NCRB, in 2020 alone, there were 1,321 arrests (over three arrests every day) made under the UAPA. They have been in prison for several years while waiting for trial.

The plight of Indian prisoners transcends gender, where each group faces unique struggles. A Supreme Court-appointed committee, led by Justice Amitava Roy, exposed the harsh realities of women’s prisons in India. Designed for men, the system neglects women’s unique needs, forcing them into unsafe and undignified conditions.

The cries of sexual abuse are louder inside these dark walls; the massive ignorance towards mental well-being is another failure. Other failures highlighted by the report include:

• Women prisoners are battling with neglect, unsafe condition, and lack of dignity.

• Pregnant inmates are not receiving proper medical care; over 1,100 children lived in prisons (2015-2021). The number of women is higher than the number of men who struggle to access medical care, legal aid and rehabilitation.

• Less than 40% of prisons provide sanitary napkins; only 18% have exclusive women’s facilities.

Reformative action to the prison system is possible through the following steps.

As of now, bail is dealt with only under the Bharatiya Nagarik Suraksha Sanhita BNSS and special laws. It's time to bring in a separate Bail Act and streamline the procedure of bail.

Many district courts dismiss bail applications on vague grounds, forcing these cases to reach the High Courts and the Supreme Court. While the primary role of the higher judiciary is to interpret constitutional provisions, it often finds itself burdened with bail matters, leading to a backlog of pending cases.

This not only increases the delays faced by the judiciary, but also shackles individuals' personal liberty and fundamental rights. Moreover, poor and marginalised prisoners often cannot afford to appeal before higher courts, which eventually leads to overcrowding of prisons.

Developed countries like Australia, the UK and many states in the USA have separate acts for bail, so why don't we bring the same? The 268th Report of the Law Commission of India suggested the passing of a separate Bail Act on the same lines as the UK legislation. This was also one of the guidelines in the landmark judgment of the Supreme Court in Satendar Antil v. CBI (2021).

On December 15, 2017, a bill for the Bail Act was introduced in the Rajya Sabha by MP Sukhendu Sekhar Ray. However, it has not been passed till now. The Bail Act should contain guidelines for courts as well as investing agencies, and must be based on the principle that 'bail is a rule, and jail is the exception'.

The Supreme Court has on many occasions noted that prisoners languishing in jails for years together did not even need to be arrested for such offences. It was also observed in Satender Antil that specific courts need to be set up in order to deal with bail applications alone. Further, bail applications ought to be disposed of within a period of two weeks, and anticipatory bail is expected to be disposed of within a period of six weeks. Implementation of these guidelines can prove to be a needful reform for the Indian prison system as well as the criminal justice system.

Section 479 of BNSS is largely derived from Section 436A of the Code of Criminal Procedure Code (CrPC), but is more restrictive in granting bail. A novel introduction is category (b), which allows first-time offenders to seek bail after serving one-third of their maximum sentence. However, sub-section (2) prevents bail if multiple offences are pending, a condition absent in the earlier provision.

For instance, if a person charged with robbery also inflicts grievous hurt, or if someone faces separate cases of cheating and forgery, they remain ineligible for relief under this section. This provision undermines Article 21 and bail jurisprudence, allowing prolonged imprisonment even without conviction. Furthermore, it creates ambiguity. Under Section 480 of BNSS, children, women and the sick can be released despite multiple non-bailable cases, whereas Section 479 denies relief for bailable offences if multiple cases exist.

This new provision restricts personal liberty and poses a challenge for undertrial prisoners.

Next, we have the restrictive bail provisions under the UAPA and the Prevention of Money Laundering Act [PMLA]. The first and most important thing we need to understand is that the concept of preventive detention is against the natural justice of the law, and is very problematic in a democratic setup.

Unlike many democracies that have abolished such provisions, India continues using them, and unfortunately all the governments use them to suppress the voices of dissent. According to government data, 97.5% of UAPA arrestees (2016-2020) remained imprisoned for years awaiting trial.

Section 43D(5) of UAPA makes bail nearly impossible, as courts must deny relief if police reports suggest a prima facie case. This undermines the principle of ‘innocent until proven guilty.’ Legal scholar Gautam Bhatia likens arguing for UAPA bail to “swimming with both arms tied”.

The idea of separate prison cells for women and undertrials isn’t new; it has been acknowledged in reforms for years. But what good are these policies if they exist only on paper? Prisons lack in basic needs like menstrual products; the Kerala Prison Department has already set an example by introducing menstrual cups.

Women prisoners face more than just confinement; they battle fear, harassment, and neglect. The Model Prison Manual 2016 mandates separate spaces for women, yet only 18% actually get them. The rest are forced into unsafe environments where their dignity and safety are constantly at risk.

Undertrial prisoners share cells with convicted criminals, exposing them to abuse and criminal influence. The Mulla Committee (1980-83) and the Model Prisons 2023 called for their separation, but in reality, little has changed. How can justice prevail when those waiting for their verdicts are treated like criminals before their trials even begin?

Separate cells for political prisoners are yet to be created. The mixing-up of all the prisoners can actually label those in jail for dissent as criminals. A demand was raised by Bhagat Singh himself in 1929. The term “political prisoner” isn’t twisted to justify unlawful or degrading treatment. History has shown that political prisoners often become the voices of change. Yet, even today, they remain lumped together with the rest, often suffering mistreatment.

Active inspection committees can step in and ensure that what is on paper can be put into action. They must ensure that separate cells aren’t just promised, and that rights aren’t just written but respected. In a just system, no one should have to fight for basic dignity, even behind bars.

India's prison system mirrors deeper defects in the justice system, where punishment precedes conviction. With more than 75% of the prisoners being undertrials, mostly belonging to marginalised sections, the absence of timely legal assistance and congested conditions are serious issues. Women prisoners suffer extra hardships because of poor facilities and denial of their basic needs.

To resolve these problems, immediate reforms are necessary. A standalone Bail Act and special bail courts can make the bail process more efficient so that undertrials are not held in jail forever. Restrictive clauses under statutes need to be reviewed to avoid arbitrary detention. Moreover, the creation of the special cells for women and undertrial prisoners is indeed written in prison laws, but poor implementation needs a strong check through inspection committees.

Justice should not be a luxury of the select few, but a universal right. The Constitution promises individual liberty and dignity, and yet thousands of people languish in jail without trial. If India really wants to live by its democratic principles, it needs to move away from the punitive route to a reformatory one.

Nelson Mandela was absolutely right when he said that a country must be judged by the way it treats its most vulnerable members. Now is the time for India to practice this in principle.

Abdur Raheem is pursuing a 3-year LL.B. from Government Law College (GLC), Mumbai.

Adeena Navaid is pursuing a 3-year LL.B. from GJ Advani College of Law, University of Mumbai.