Blog
22 Sep 2026
12 mins read

The Invisibilisation of the Undertrial

**Riyan Paul Mathew

“The degree of civilization in a society can be judged by entering its prisons”, Dostoevsky reminds us that a society must be judged by how it treats its most vulnerable, but what do you make of a society which throws people in prison for long durations before they have even been convicted? 75% of India’s prison population are undertrial prisoners, unable to access justice, unable to even access a trial through which their guilt is determined. In every sense, their punishment begins before their conviction and the principle of “innocent until proven guilty,” is flipped on its head. But, the deeper problem is that while we know, to some extent, the number of such people under-trial, we do not know very much else.

The National Crime Records Bureau (NCRB) publishes Prison Statistics India annually, and that report is the primary lens through which India sees its own prisons. The NCRB’s methodology is essentially passive, it collects data submitted by state and UT prison departments, scrutinises it for internal discrepancies, and publishes what it receives. The NCRB’s own disclaimer reiterates that it is “involved only in data collection and collation”. The underlying figures are just an aggregation of whatever the states choose to submit. As the Citizens for Justice and Peace observed, the NCRB treats these figures with “bureaucratic neutrality,” presenting structural inequality as a naturally occurring phenomenon rather than as the product of institutional failures. There are no meaningful consequences for submitting poor data, and no independent verification of what states report.

And this is not just a peripheral problem, when the data on which they act is unreliable, every mechanism– from legislative oversight to civil society mobilisation, operates on a distorted picture. The person under-trial is, therefore, invisible not merely because they are locked away behind bars, but because the system that is supposed to count them has no incentive to count them properly, or rather, no disincentive for counting them improperly.

Section 436A of the CrPC, now 479 of the BNSS, is one such provision that directly addresses the undertrial crisis. It entitles an undertrial who has already served half their maximum possible sentence in pretrial detention to default bail. Under the BNSS, this threshold is reduced to one-third for first-time offenders, and the burden of identifying eligible prisoners has been shifted from the prisoner to the jail superintendent.

Despite this seemingly positive reform in the law, sec 479 BNSS has gained significant infamy for in effect negating the right, through the proviso in 479(2). In Re: Inhuman Conditions, the Supreme Court held that the section would apply retroactively and in K. Ramakrishna, the Karnataka High court clarified that the requirement under 479(2) will now be operative against all undertrials seeking the benefit of this section. Therefore, any undertrial against whom there are multiple charges or cases can no longer avail the benefit of the section, a condition which was absent in the older sec 436A CrPC.

One more fundamental regression in sec 479 BNSS is that it only allows for release on bail, release on personal bond may only be granted to first time offenders up to the discretion of the court. In stark contrast to this, sec 436A treated personal bond as the norm and release on bail is a discretionary power that the court may exercise provided it records its reasons in writing.

The data examined in this piece was collected entirely under Section 436A, before Section 479 came into force, and therefore before the multiple-charges bar existed in statutory form. Those numbers are, as the data shows, already deeply troubling. Under Section 479, the eligible population will in all likelihood be smaller, because the multiple-charges bar will disqualify a substantial portion of those who would previously have qualified. Whatever reform the BNSS was supposed to deliver on undertrial incarceration, the architecture of Section 479 ensures that the eligibility problem and the data problem compound each other in ways the old provision did not.

On the face of it, the provision should be widely used. Nearly 30% of India’s undertrial population has been confined for over a year. In 2022, that translated to approximately 1,34,799 people. Yet NCRB data from that same year records only 1,487 undertrials as eligible for release under 436A nationwide, roughly 1.1% of those long-duration detainees [NCRB, Prison Statistics India, 2016–2023]. Across the eight years from 2016 to 2023, the average percentage of the total undertrial population found eligible under 436A was 0.5%, and the average percentage actually released was 0.2%.

But release numbers alone are not evidence enough; it is necessary here to look at determination of eligibility of undertrials to claim the benefit of Sec 436A. Such analysis could reveal if the data itself is unreliable or the low release rates are attributable to factors outside the prison and its functions.

Yet, the figures on eligibility appear to paint an even more grim picture. Maharashtra, which maintained an average undertrial population of approximately 28,882 over that period, reported zero eligible candidates, in each of those seven years. Punjab, similarly reported zero eligible undertrials with an average of 18,274 undertrials. So did Haryana, Gujarat, Tamil Nadu, Andhra Pradesh, and several others [NCRB, Prison Statistics India, 2017–2023].

The statistical improbability of this outcome raises fundamental questions that challenge the legitimacy of the only lens through which we see prisons. Some of these are India’s largest states, with prison populations running into the tens of thousands, making the reporting of zero eligible undertrials across a seven-year period reason enough to suspect that the reporting mechanism has broken down or at the very least has become unreliable.

This suspicion is confirmed when the NCRB figures are read with data compiled by the 245th Report of the Rajya Sabha Standing Committee on Home Affairs, which collected figures directly from state governments for a parliamentary review. Between 2017 and 2021, Uttar Pradesh reported 30,415 undertrials eligible under 436A to the parliamentary committee. For those same years, it reported 5,825 to the NCRB, a five times discrepancy. Delhi reported 11,894 to the parliamentary committee and 39 to the NCRB. Such a stark dissonance in the data cannot be attributed merely to methodological variations, it is almost certainly the product of the different accountability pressures attached to a parliamentary committee inquiry as compared to an NCRB data submission. In the absence of any consequences for misreporting, misreporting is the default.

Yet the data problem itself may not be a problem, so long as other mechanisms intended to protect the undertrials continue to operate satisfactorily, especially keeping in mind that this is a section that would only come into operation in rare cases. However, the data depicts that even these mechanisms have been underperforming.

The first is legal aid. Even where a prisoner’s eligibility under 436A goes unrecorded by prison administration, a competent legal representative would ordinarily identify it and act on it. But research suggests that as few as 8% of undertrials avail themselves of state-provided legal aid. This is partly a consequence of the insufficiency of the aid itself– poor pay structures and excessive caseloads, compromise the quality of representation even where it nominally exists. The income data of the prisoners compounds this further. According to Supreme Court data, 38.21% of all prisoners have an annual family income below Rs. 30,000. It is not unreasonable to assume that the 92% of undertrials without state legal aid are in a similar position, and would not have the means to afford private counsel.

The second failure is judicial. Even among the undertrials who do manage to establish eligibility under 436A and secure legal representation, the NCRB data shows release rates of between 34% and 60% across the years 2016 to 2023. The Parliamentary Committee data paints a considerably worse picture, such as in UP, between 2017 and 2021, only 711 of 30,415 eligible undertrials were released, a release rate of approximately 2.3%.

Trial courts routinely impose bail bonds, which undertrials from impoverished backgrounds cannot produce. While the inability to afford the surety itself is already a significant barrier, the condition of producing one or more sureties is itself a second barrier that disproportionately affects the poor and those without community ties at their place of imprisonment, becoming evident in the case of migrant labourers. The UTRC data for 2024 and 2025 shows that in each quarter across those two years, roughly 3,800 to 5,100 prisoners were identified as having had bail granted but remaining incarcerated solely because they could not furnish surety. Applications were filed on behalf of a portion of these prisoners, and the success rate on those applications ranged from 62% to 69%.

This means that for these undertrials, even after it has been pointed out to the judiciary that the only reason for their incarceration is the inability to furnish surety, there is no relief. Under 436A, the provision by default allows for release on a personal bond, whereas, to grant bail with surety is, as noted earlier, a discretionary power granted to the court which may only be exercised for reasons recorded in writing. The consistent choice to exercise that power, despite documented indigence, reflects what has been described as the judiciary’s tendency to treat jail as the rule and bail as the exception. A statutory right to liberty should not require the purchase of a surety.

An undertrial prisoner faces these compounding failures; their eligibility is not counted, their legal representation is inadequate to identify and remedy that failure, and even where eligibility is established, the judiciary erects barriers to their release. Each of these failures is serious in isolation, but in consonance, they produce a condition of near-total exclusion. In this context, the data problem is not one failure among three, rather it is the condition that prevents any of the others from being addressed at scale.

For example, the UTRC data from 2024 and 2025 shows that these committees, starting from a prison population of approximately 5 lakh, are identifying, recommending, and securing the release of approximately 1% of that population per quarter through their interventions. Odds are that these UTRCs, which operate on the same data ultimately compiled by the NCRB, are unable to adequately represent vulnerable undertrials simply because the data itself is filtered, incomplete, and in the case of 436A eligibility, almost certainly a severe undercount.

The legislature is similarly situated. The 245th Committee report revealed that parliamentary scrutiny could produce dramatically more realistic numbers from the same state governments that filed near-zero figures with the NCRB. That a targeted inquiry could expose a 300-fold discrepancy between what Delhi reported to the NCRB and what it reported to Parliament is evidence enough that the accuracy of data is dependent on the differential accountability pressures from these two bodies. It is evidence that the NCRB’s passive, consequence-free data collection produces numbers that bear no necessary relationship to reality, and that no one in the ordinary operation of the system has any reason to correct them.

The explanations that might account for the gap between the undertrial population and 436A utilisation may be manyfold, but the data is too opaque to establish which explanation accounts for how much of the gap. Rather than illuminating the problem, the data obscures it. It is clear that something is badly wrong but it is entirely impossible to say what, or where, or because of whom. The Supreme Court recognised the systemic failure of 436A as far back as 2014 in Bhim Singh v. Union of India, issuing directions for dedicated judicial sittings in prisons to identify eligible undertrials. The data examined in this piece was collected after that intervention.

Eligibility figures continue to remain implausible, release rates in some states are in single digits, and the gap between NCRB and parliamentary committee figures suggests that nearly a decade later, there is no meaningful improvement. DAKSH’s research has found that despite various legislative and judicial interventions, the extent and duration of undertrial incarceration has continued to rise, with a disproportionate impact on the most socio-economically vulnerable. Judicial acknowledgment, in the absence of structural reform, means very little.

Ultimately, the cumulative effect of this flawed data collection apparatus is that the undertrial prisoner is invisible twice over. They are invisible within the system as the infrastructure that should track their eligibility, their legal representation, and their release does not function adequately. And, they are invisible outside the system because civil society, courts, and legislatures cannot mobilise effectively around a problem they cannot accurately measure.

This invisibilisation is not necessarily deliberate, but in the absence of accountable data collection, adequate legal representation, and a judicial system that errs towards caution over liberty, this invisibilisation is only natural. Until the first of these failures is addressed, until India rebuilds a prison data infrastructure with real accountability and meaningful consequences for non-compliance, the other interventions will continue to reach only a fraction of those they are intended to protect.

Links To Specific Tables relied upon from PSI reports

2023

2.11B Domicile of Undertrial Prisoners

7.4 Status of Undertrial Inmates under Section 436A of Cr.P.C.

2022

(11 B) Domicile of Undertrial Prisoners

Status of Undertrial Inmates under Section 436A of Cr.P.C.

2021

Domicile of Undertrial Prisoners

Status of Undertrial Inmates under Section 436A of Cr.P.C.

2020

Domicile of Undertrial Prisoners