Speedy Trial and the Undertrial

In one line

An undertrial is a person the law presumes innocent and holds in a prison, and the Supreme Court's answer since 1979 has been that a speedy trial is part of Article 21.

In the wording a student can write in an exam: an undertrial prisoner is a criminal prisoner who has not been convicted, and who is in custody during investigation, inquiry or trial. The Prisons Act 1894 legislates for him as an unconvicted criminal prisoner in sections 27(3), 31, 32, 33 and 40. His constitutional protection comes from Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360, which held that speedy trial, though not specifically enumerated, is implicit in the broad sweep and content of Article 21.

The problem

State it precisely, because it is the whole of the subject.

A person who has been convicted is in prison because a court found him guilty and fixed a term. A person awaiting trial is in prison because he could not obtain bail, and no court has found him guilty of anything. The presumption of innocence and the fact of confinement sit side by side, and the longer the trial takes, the more the confinement looks like a sentence nobody imposed.

The worst form of it is a person held for longer than the sentence he could have received had he been convicted. That is punishment without conviction, and it was exactly what Hussainara Khatoon was about.

No figures appear in this book. Indian undertrial numbers are published in the National Crime Records Bureau's Prison Statistics India, and that publication could not be retrieved when this was written. The propositions here rest on the case law and on the statute, and an answer should argue them the same way.

Hussainara Khatoon

Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360. Decided 12 February 1979.

Facts. The petition disclosed that large numbers of undertrial prisoners were being held in the jails of Bihar, many for periods exceeding the maximum term of imprisonment they could have received on conviction, awaiting trials that had not begun. Many were charged with minor offences, many had no legal representation, and many were in custody simply because they could not furnish bail.

Held. Speedy trial is of the essence of criminal justice, and though it is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21. A procedure that keeps an undertrial in custody for longer than the sentence he could receive is not reasonable, fair or just. The Court directed the release of undertrials in that position and made directions for legal assistance to those who could not afford it.