Answer:

The Under trail problem is defined as number of under trails in proportion to convicts in Indian Prison system. The primary constitutional and moral concern with undertrial detention is that it violates the normative principle that there should be no punishment before a finding of guilt by due process.

Some of the causes of large number of undertrials in India are:

♤ The disproportionately small number of courts in a country with a large population

♤ The perennially increasing rights and obligations created by ever increasing pieces of legislation

♤ The low level of efficiency of the judicial system and ;

♤ The multi-tier appellate system primarily caused the huge backlog in the justice delivery system.

♤ Another major reason for the large volume of pending cases is the inability of undertrials to furnish a bail bond

The Supreme Court of India based on Section 436A of the CrPC, has recently passed a judgment for states to release under trials who have already served more than half the sentence had they been convicted within two months. Even though the move is well intended there a number of the concerns remain with Section 436A:

♤ On average over 80 per cent of undertrials in India spend less than one year in prison during the years under consideration. Most of them are unlikely to have spent half of their likely prison term.

♤ So even though this would help those who have been undertrial for a long period of

time it certainly wouldn’t solve the problem of undertrials in India.

♤ Single largest category of crime for undertrials in India is murder which entails sentence of larger duration. Ruling will not benefit them murder being heinous crime.

♤ Various reports and studies suggest that illiterates, poor and other vulnerable section are over represented in the undertrial population. Justice system must address this systemic bias.

Arguably, the high proportion of undertrials is a reflection of the pathological failure of the criminal justice system to successfully convict and thereby secure peace and security. This failure must be resolved by focussing on systematic institutional reform of the investigation and prosecution of offences. Second, our current legal strategy assumes inordinately long periods of undertrial detention and we show that a Section 436A-focussed strategy will have minimal impact on the undertrial population overall.

Without substantive reforms to the investigation and trial process, early release of undertrials may further aggravate the pathologically low rates of conviction and incarceration in the Indian criminal justice system.