Currently, over 75% of the Indian incarcerated population is made up of undertrial detainees. This number has grown steadily over the last decade, with a 10% increase compared to 2012. It is hence no surprise that India currently ranks sixth globally in the share of undertrial detainees.
Under Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), undertrial detainees are typically entitled to bail after completing half of the maximum sentence prescribed for the alleged offense. The exception is extended for cases involving capital punishment (death or life imprisonment). For first-time offenders, this threshold is reduced, making them eligible for release on bond after serving one-third of the maximum sentence. Despite these provisions, 2 in 3 undertrial detainees currently held in Indian prisons are eligible for bail and yet incarcerated. Over 25% of these incarcerated individuals have been in prison for over a year.
The problem is compounded by glaring social inequalities with 2/3rd of undertrial detainees belonging to backward groups especially of the Dalit and Adivasi communities. An additional 19.3% of those detained are Muslim, showing a 38% disproportionate representation in comparison to their share in the Indian population. This is not an isolated occurrence as in the past two decades these numbers have stayed more or less stagnant, highlighting a systemic pattern of bias in the legal system, without any foreseeable rectifications.
Why aren’t the solutions working?
To address the growing problem of legally-innocent detainees, the Department of Justice has initiated the formation of Fast Track Special Courts across India which aimed to expedite trials, particularly for cases related to rape and the Protection of Children from Sexual Offences (POCSO) Act. The Government of India has also initiated bail schemes providing financial relief for economically burdened individuals currently suffering incarceration.
However, despite having 745 Fast Track Special Courts in India -including 406 ePOSCO courts- this number is nowhere near enough considering the massive judicial backlog in the country.
Furthermore, government funding remains inadequate. The 2025 Fiscal Budget originally planned to keep aside INR 300 crores dedicated for prison reformation, a number then slashed to 75 crores.
Recently, the government also launched a bail scheme granting INR 40,000 to undertrial detainees and INR 25,000 to convicted prisoners who were now eligible for bail. However, the distribution of these funds is in the hands of slow-moving oversight committees formed to review the concerned cases. Hence, neither Bengluru nor Odisha, Delhi, Kerala or Uttar Pradesh have successfully released detainees despite being included in the scheme.
Additionally, the Indian Government is the largest litigant in the country and its involvement calls for tedious procedural scrutiny drastically decreasing the likelihood of settlement in cases.
Other possibilities:
A recent proposal made by the Supreme Court of India is to drop trials for first-time offenders of minor crimes. This is provided they have already served a significant portion of their potential sentence in pre-trial detention. Implementing this recommendation aims to ensure that individuals are not unfairly penalised due to judicial delays.
Additionally, the Constitution of India provides for the right to access free legal aid in order to expedite a fair and speedy trial. However, this aid is often provided just before the trial rather than from the moment of arrest, leading to high levels of unprepared case defence. Government programs that partner with public law colleges to appoint graduates into compulsory pro bono internships would be beneficial to solve the problem of having enough lawyers to help detainees early on in their trial process.
Despite growing awareness around the need for prison reform, India’s undertrial crisis remains unresolved. Statistics time and time again have highlighted systemic inaction in delivering liberty to legally innocent people put away in prison – facilitating the true justice parody.
While the government has urged states to enforce Section 479 of the BNSS and provide necessary legal aid to facilitate undertrial release, there is still a long way to go. The overwhelming cases of biased arrest and slow bail hearings can be rectified only when the budget for prison reform is larger and more dedicatedly directed towards solving systemic flaws.
Until legal representation is made immediate, oversight mechanisms are strengthened, and political will is matched with financial commitment, India’s prison cells will remain overcrowded not with the guilty—but with the forgotten.
Citations:
- National Crime Records Bureau. Prison Statistics India 2022. Ministry of Home Affairs, Government of India, 2023.
- Ministry of Law and Justice. Bharatiya Nagarik Suraksha Sanhita, 2023. Government of India, 2023.
- Ministry of Finance. Union Budget 2025-26. Government of India, 2025.
- Ministry of Women and Child Development. Fast Track Special Courts (FTSC) Scheme. Government of India, 2022.
- Supreme Court of India. “Directions Regarding Trial of Undertrials.” Supreme Court Orders, 2024.
- Legal Services Authorities. National Legal Services Authority (NALSA) Annual Report 2023-24. Government of India, 2024.
- Ministry of Home Affairs. Model Prison Manual 2016. Government of India, 2016.