New Delhi: The foundational principle of criminal justice — that every accused person is presumed innocent until proven guilty — has become, according to Supreme Court judge Justice Vikram Nath, “far from reality” for the overwhelming majority of undertrial prisoners in India. Speaking at a symposium on “Between Custody and Constitution: Field Lessons in Delivering Fair Trial Rights”, organised by the Square Circle Clinic at the National Academy of Legal Studies and Research (NALSAR), Justice Nath highlighted the stark contradictions between constitutional promises and the lived realities of those awaiting trial behind bars.

India’s undertrial population represents a striking challenge to the criminal justice system. According to statistics maintained by the undertrial review committee established under a 2015 Supreme Court judgment, there are currently 530,333 prisoners in India, with undertrials accounting for 74% of this number. Justice Nath noted that this overwhelming proportion of undertrial prisoners underscores the systemic failures in ensuring timely trials, access to legal aid, and the upholding of basic human rights.

The Reality Behind the Presumption of Innocence

Justice Nath’s address underscored a grim reality: while the presumption of innocence is enshrined in law, it rarely translates into practice for the majority of undertrials. “The contradiction we are here to discuss today is that between the constitutional promises and the lived reality of undertrial prisoners,” he said. Many individuals continue to languish in custody not because the law requires it, but because the criminal justice system has failed them at multiple levels — from police investigation to judicial delays and inadequate legal representation.

He cited instances where undertrial prisoners have already spent more time behind bars than the maximum sentence prescribed for the offences they are accused of committing. In other cases, prisoners remain in jail for bailable offences simply because they are unable to furnish bail or produce the necessary sureties. Justice Nath emphasised that these delays are especially detrimental to marginalised communities, poor individuals, and those who are unaware of their legal rights, thereby magnifying systemic injustices.

Access to Legal Aid and Systemic Failures

Although the law guarantees free legal aid, Justice Nath highlighted that only 7.91% of undertrial prisoners have actually availed themselves of this right. Many are unaware of its existence, while others harbour distrust towards state-provided advocates due to prior experiences of ineffective representation. “He just waits, not because the law makes him, but because the system has failed him,” Justice Nath remarked, stressing that meaningful legal aid is essential to transforming the presumption of innocence into a lived reality.

Justice Nath also recounted historical judicial interventions that sought to address these systemic issues. He referenced the landmark Hussainara Khatoon case of 1979, which led to the release of over 40,000 undertrial prisoners. While monumental judgments like this provide significant relief, Justice Nath cautioned that public faith in the justice system cannot be restored solely through high-profile rulings. “The faith of people in the system will be restored not by monumental judgments alone, but by the everyday decency of those who serve within it… When legal aid becomes meaningful, justice becomes visible. And when that happens, our democracy breathes a little easier,” he said.

Compensation for Wrongful Detention

In a recent development, a bench led by Justice Nath on October 27 sought the response of the Centre, the Attorney General, and the Solicitor General on whether prisoners who are acquitted after years of incarceration should receive compensation for the wrongful deprivation of liberty. The bench raised the question of whether restoration of liberty should extend beyond mere release, highlighting the moral and constitutional responsibility of the state to acknowledge the harm caused by prolonged, unjustified detention.

Research and Recommendations

Justice Nath highlighted the work of the Square Circle Clinic, which has undertaken research into prison legal aid and helped secure the release of nearly 1,700 inmates since 2019. According to the report, legal aid in India currently operates in disconnected institutional silos, lacking a continuous and accountable chain of representation from the first court appearance to the conclusion of trial. Justice Nath emphasised that legal aid must evolve from a procedural obligation to a “constitutional and moral duty,” rooted in Articles 21 and 39A of the Constitution, to ensure that poverty or ignorance does not dictate a person’s liberty.

The judge also called for greater data transparency and the creation of national and state-level longitudinal databases to track undertrial detention patterns. He suggested that these databases should be disaggregated by caste, gender, economic status, and geography to inform evidence-based reforms. Such data could help identify systemic inequities and ensure that reforms target the most vulnerable groups effectively.

Protecting Vulnerable Populations

Justice Nath underscored the need for differentiated protections for women undertrials, transgender persons, and those with mental health concerns. He pointed out that these populations often face compounded vulnerabilities due to systemic invisibility, inadequate legal representation, and lack of tailored interventions. By highlighting these groups, he drew attention to the importance of adopting an intersectional approach in criminal justice reforms to ensure that legal protections are accessible to all, especially those most at risk of marginalisation and abuse.

A Call for Justice and Dignity

Throughout his address, Justice Nath stressed that if the criminal justice system is to err, it should err on the side of liberty and dignity. Quoting Justice H.R. Khanna, he said, “If we are to err, let us err on the side of liberty and dignity.” He highlighted that the true measure of a legal system lies not in the elegance of its jurisprudence but in how it treats its most vulnerable members. Every undertrial languishing beyond their due, every person denied effective legal aid, is a reminder that systemic reform remains incomplete.

Justice Nath concluded with a powerful exhortation to the legal community and policymakers: the presumption of innocence, timely access to legal aid, and the protection of vulnerable populations are not just legal obligations but moral imperatives. Upholding these principles is essential to restoring public faith in the criminal justice system and ensuring that India’s democracy functions in accordance with constitutional guarantees.

Conclusion

Justice Nath’s address presents a sobering examination of India’s criminal justice system and the plight of its undertrial population. With over 74% of prisoners being undertrials, systemic delays, inadequate legal aid, and socio-economic disparities have rendered the presumption of innocence largely theoretical for many. His call for a rights-based, data-driven, and morally grounded approach underscores the urgent need for reforms that prioritize liberty, dignity, and justice.

By highlighting both the systemic failures and the potential pathways for reform, Justice Nath’s speech underscores the critical importance of transforming legal principles from abstract ideals into tangible protections that safeguard the rights of India’s most vulnerable citizens. The challenge remains not only in releasing undertrials and providing legal aid but also in rebuilding a justice system that truly lives up to its constitutional promises.

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