Beyond the Verdict

**Aaisha Hashmi and Krishnakant Singh

With 74% of India’s prisoners awaiting trial, expanding pre-conviction probation frameworks offers a constitutionally sound path to decongest prisons while balancing the presumption of innocence

The criminal justice system in India is in a state of paradox that touches the roots of our constitutional democracy. As we see the number of people in our prisons exceeding 5.3 lakh people, almost three-fourths of them are not even convicted by any court of law. These under-trial prisoners, who are technically innocent under Article 21 of the Constitution, are rotting in overcrowded institutions that are running at 120% capacity across the country. The condition is worse still in the capital, where the prisons in Delhi are almost at 200.2% capacity based on the 2023 Prison Statistics India report.

The situation is now untenable, as the Supreme Court recently pointed out in Re: Inhuman Conditions in 1382 Prisons. The number of undertrial prisoners is high since many are in pre-conviction detention longer than the maximum term that would be imposed on them had they been convicted. This is a reiteration of the forty-year-old sentiment in Hussainara Khatoon v. Home Secretary, State of Bihar (1979), in which the apex court deplored the fact that many undertrials took longer than the maximum sentence.

To navigate this crisis, our carceral strategy requires a paradigm shift. Crucially, we must distinguish ‘pre-trial’ diversion (which avoids the trial entirely) from ‘pre-conviction’ intervention—a broader framework allowing the trial to proceed while offering supervised release before a verdict. Because pre-conviction measures maintain judicial oversight, they provide a constitutionally sound path to decongest prisons while respecting the presumption of innocence. Existing tools like the Probation of Offenders Act and BNSS Section 401 remain strictly post-conviction. In India, there is a great deal of absence of statutory provisions of pre-conviction supervision and rehabilitation. This blog proposes an argument that the concept of the introduction of the structured Pre-Conviction Diversion, based on the existing exceptions under the Narcotic Drugs and Psychotropic Substances Act, 1985, and in other successful models from foreign jurisdictions, provides a constitutionally permissible, economically judicious, and desperately needed remedy to the problem of the overcrowding of Indian prisons.

The Anatomy of a Crisis: Why Pre-Conviction Intervention Matters

To see the need to have a pre-conviction diversion, one has to see who this bulk of under-trials is. The Prison Statistics India by the National Crime Records Bureau reflect alarming demographics, dispelling the widely held notion that the dangerous criminal is out there. The statistics indicate that undertrials are young people aged 18-30 years at 49.1%. Moreover, 71.9% of them are Scheduled Castes, Scheduled Tribes or Other Backward Classes, almost 23.8% are illiterate, and about 64.3% have not completed Class X.

Consequently, these demographics clarify that our carceral system disproportionately captures the marginalised, rather than a mythical class of privileged, ‘dangerous strangers.’ Moreover, the Prison Statistics India published by the NCRB indicates the number of non-violent offences that have congested the system. Over 21% of prisoners are detained on Special and Local Laws (SLLs) – more often than not, for minor, non-violent offences like the Excise Act. These people are held in custody not because they are dangerous, but because they are not given the financial privilege to be able to afford bail bonds. To some, this is an extended pre-conviction detention, which is longer than the prescribed maximum sentence, and this demonstrates the dire need for diversionary interventions.

Maintaining this status quo is socially staggering. When an undertrial is held, the individual loses their livelihood, and their families often end up in intergenerational poverty. Worse still, prison conditions are criminogenic (they breed further criminal behaviour); petty offenders develop criminal associates and face stigmatisation, which encourages recidivism (tendency to re-offend).

The current system of relief, including the Undertrial Review Committee (UTRC), developed as a result of the Supreme Court guidelines in 2015, is not enough. In 2024 alone, even after having named more than 42,000 prisoners to be free, only less than 50 per cent of them were actually set free because of procedural delays, absence of legal assistance, and unwillingness of the courts to grant bail without sureties. This points to an urgent need to fill in a serious gap existing between unconditional bail and pre-conviction detention- a gap that can only be filled by a supervised release.

The Constitutional Tightrope: Balancing Innocence with Rehabilitation

The constitutional presumption of innocence is the main jurisprudential rationale that can be used against pre-conviction diversion. The issue is: How do we compel the State to implement rehabilitation programmes, supervision or treatment of people who are technically innocent until the time when they are found guilty? Although this tension is legitimate, it is not impossible to overcome.

The NDPS Act is already a statutory template for reconciling these principles. The Act section 39 authorises judicial supervision and treatment as an alternative to sentencing in a case in which an addict was found guilty. Section 64A, in a more radical fashion, creates actual pre-conviction diversion. It enables the addicts who have committed certain crimes to voluntarily receive medical care. When they succeed in doing so, the section states that they will not be prosecuted. This is provided, even before a court conviction, as an indication of immunity provided a promise made to undergo rehabilitation.

This is constitutionally valid, and the difference is voluntariness rather than coercion. Pre-conviction diversion is voluntary, providing accused individuals with the option of either pre-conviction detention or supervised release with rehabilitative requirements. This aligns with the Juvenile Justice Act, 2015, where Section 3(xv) mandates that institutionalisation must be the last option. If the law can grant juvenile diversion without affecting rights, the same must apply to adults accused of minor, non-violent offences.

The Law Commission realised in its 135^th Report  “Women in Custody,” which suggested increased supervision of women to avoid the “deleterious impact of life in jail.” The Commission observed that the rehabilitative aims of the current laws are consistent with Article 21, ensuring dignity irrespective of whether a person is convicted or not.

The Legal Landscape: Gaps and Opportunities

The system of probation in India is still largely post-conviction. The BNSS, in Section 401, permits the release of offenders on probation of good conduct only when a person is convicted of an offence. Likewise, the Probation of Offenders Act, 1958, comes into effect once one has been found guilty, but without the stigma of conviction, the term found guilty takes its place instead of convicted, a change of word that the legislature specifically aimed at allowing reintegration.

This legal loophole stands in contrast to the new rules in legislation. Section 479 of the BNSS requires undertrials to be granted bail and to be considered for early release, in addition to the fact that long pre-conviction detention is deemed unconstitutional. It, however, fails to go further into developing positive rehabilitation programmes.

Indian prisons frequently serve as warehouses for the mentally vulnerable. While the national prevalence of mental disorders in the general population sits at around 10.6% (National Mental Health Survey, 2015-16), this concentration is significantly higher behind bars. The official statistics are alarming: Prison Statistics 2019 shows that 7,394 prisoners were mentally ill, followed by 9,095 according to Prison Statistics 2023. Even with this increasing crisis, Indian prisoners are p:Itsoorly prepared to cope with mental health requirements. After all, throwing presumed-innocent undertrials into a prison without any psychological diversion before conviction does not stop them from committing crimes; it only adds to the untreated trauma that contributes to committing crimes.

Graph illustrating the number of mentally ill prisoners for the years 2019, 2020, 2021, 2022, and 2023 (Source: National Crime Records Bureau)

Global Blueprints: Lessons from Pre-Conviction Diversion

International jurisprudence has been very vocal about the need to shift to a less punitive model and toward a pre-conviction diversion framework. In the past, older United States federal guidelines and other legal systems tended to lump pre-trial and pre-conviction notions under a single umbrella, leading to administrative confusion. But contemporary world maps are consciously based on organised, judicially supervised interventions, which take place in the trial process, prior to a finalised conviction.

One of the best illustrations is that of the Drug Court model in Australia, especially in New South Wales. This is a system that works on a pre-conviction or deferred-sentencing basis. In situations where an accused person has some substance dependencies, the formal trial or sentencing process is not taken. The judge puts the accused under high pressure, court-supervised rehabilitation as an alternative to taking them to an overcrowded jail. The statistics provided by the NSW Bureau of Crime Statistics and Research (BOCSAR) continue to show that this pre-conviction intervention has been shown to considerably reduce recidivism over traditional incarceration, proving that both judicial supervision and rehabilitation can co-exist prior to a final verdict.

Likewise, the United Kingdom applies statutory pre-conviction measures, like Deferred Sentencing (currently unified under the Sentencing Code). This allows the courts to delay a conviction up to a maximum of 6 months in order to monitor the behaviour of the accused, namely his or her engagement in rehabilitative programs or restorative justice programs. The latter, together with UK-based National Liaison and Diversion (L&D) services, which establish the presence of mental health vulnerabilities at the very start of the judicial proceedings, provide the means of ensuring that the court maintains supervisory powers at the same time as it actively diverts the accused out of the carceral settings.

With such specialised, pre-conviction models, India will be able to smoothly incorporate some diversionary strategies into its current judicial apparatus- accountable, yet decisive in dealing with the undertrial population crisis. 

Homegrown Proof of Concept: The Prayas Model

In India, even though there is no officially recognised statutory system of pre-conviction diversion, there are already small pilot projects in civil society that have demonstrated that the given concept has the potential to be successful.

The feasibility of pre-conviction support is evidenced by the program Legal Representation for Undertrials in Maharashtra (2018-2021), which was conducted by the field action project of TISS called Prayas. This initiative aimed at the pre-conviction phase by putting social workers in prisons. They closed the divide between courts and poor undertrials by tracking down families, finding local sureties, and raising NGO funds to pay cash bonds–transforming paper bail orders to real release. The project achieved 9,570 undertrials by institutionalising this socio-legal support, and 4,504 were released (a 47% success rate). This demonstrates that pre-conviction supervised socio-legal intervention is a potential, scalable, and effective tool to empty prisons.

Most significantly, the Prayas data shatters the myth of flight risk normally applied to support detention. Undertrials released under social support and supervision showed negligible absconding rates. This provides empirical evidence that in cases where the state offers assisted release (supervision + aid) as opposed to money bail, accused people show up in court and fail to recidivate.

The Economics of Rehabilitation

The financial cost of the undertrial crisis is colossal. In the state, on average, the expenditure on a prisoner is INR 50,343, calculated by using the NCRB Prison Statistics India expenditure data. This money is wasted on accommodating undertrials who are either acquitted or whose pre-conviction detention is more than the sentences they are likely to get. Rather than incurring this expense, money has to be diverted to pre-conviction diversionary release programs. Contrary to the post-conviction community service, pre-conviction diversion allows people to be employed and have relationships with their families during trial, avoiding the economic blow that further drives marginalised families into poverty.

Implementation Challenges: Navigating Resource Constraints

There are structural obstacles to pre-conviction diversion, mostly in the form of resource limitations. Effective programmes need treatment facilities, probation-trained officers and compliance monitoring- amenities that are severely lacking in most states in India and rural areas where most of the inmates are found. The existing probation system is bone-thin, and there are not sufficient probation officers to handle post-conviction cases in most states and certainly not diversion before conviction.

The stigma of apprehension is another difficulty. Pre-trial treatment can violate the presumption of innocence by treating it as an activity indicative of guilt. The answer is evident legal procedures that will be used to differentiate between diversion (pre-conviction, voluntary, charges dismissed) and probation (post-conviction). The right template is the NDPS Act model, in which termination of the treatment recovery leads to the termination of liability.

Determining the undertrials that can be safely put on pre-conviction release creates some issues about safety in society. But a ready-made filter is already in existence in Indian jurisprudence: plea bargaining. Section 289 of the BNSS, 2023, allows mutually agreeable dispositions of offences with a maximum term of seven years, but does not apply to socio-economic offences and crimes against women or children.  This statutory threshold gives the tool to decide on the eligibility of divergence. If the State acknowledges that individuals accused of these non-heinous crimes are suitable for alternative resolutions, they are equally suited for supervised, pre-conviction rehabilitative programs. By aligning diversion eligibility with BNSS plea-bargaining criteria, lawmakers can bypass drafting new risk-assessment categories and repurpose an established framework to transition non-violent undertrials into community-based care.

A Legislative Roadmap for Reform

To begin with, Section 401 of the BNSS should be modified, explicitly introducing the ‘Pre-Conviction Rehabilitation Board’. This should clearly allow judicial supervision agreements in the pre-conviction stage, where accused persons who are ready to undergo rehabilitation should be allowed to do so. This must reflect the immunity provision under the NDPS Act, where the plain meaning is that no participation will amount to an admission of guilt and cannot be used as evidence in case the agreement was terminated unsuccessfully.

Second, the Union Government’s Poor Prisoners Bail Scheme needs to be expanded. It is currently focused on bail surety financial assistance, but should be conceptually extended to support release. The State is supposed to offer monitored living, career training, and psychological support, and changing the bail not into a monetary one but as a rehabilitation strategy.

Third, Pre-Conviction Diversion Cells should be institutionalised. District Legal Services Authorities (DLSAs) have to set up cells that are equipped with social workers and mental health professionals. These cells would administer approved risk-needs tests through globally standardised instruments such as the Level of Service/Case Management Inventory (LS/CMI), which would identify those candidates deserving diversion and those deserving detention.

Last but not least, mental health services should be incorporated. The BNSS should be associated with the Mental Health Care Act, to enforce the requirement of psychiatric assessment of all undertrials within 30 days after they are imprisoned. Since the rate of disabilities is high among undertrials, this would make a substantial number of the pre-conviction population avoid incarceration in favour of treatment.

Conclusion

The pre-conviction diversion prospect in Indian jurisprudence is not just an undertaking of procedural change— it is an indication of a paradigm change in criminal justice towards being therapeutic rather than punitive. Although the presumption of innocence is the foundation of our constitutional order, this does not imply that voluntary, rehabilitative interventions that do not impair liberty, but rather aim at removing the causes of so-called criminality, should be excluded.

The dichotomy between prison and unconditional bail has failed, as India is facing the challenges of overcrowded prisons that violate Article 21 right to a dignified life. A third alternative is provided by supervised release, protecting the almost 4.2 lakh untried prisoners, predominantly young, marginalised, and not guilty. The mechanism can guard against the criminogenic consequences of the extended pre-conviction imprisonment.

Pre-conviction diversion is not a goal to be achieved over time but an urgent necessity. Unless the criminal justice system takes this reform, it will revert to the same regime of undertrials serving de facto sentences on mere suspicion, long before guilt is established and far beyond constitutional limits.

**Aaisha Hashmi is a final year BA.LL. B (Hons.) Student at HILSR, School of Law, Jamia Hamdard.

**Krishnakant Singh is a third-year BA. LL. B (Hons.) student at Rajiv Gandhi National University of Law, Punjab.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.