The time spent by undertrials in jail often exceed the maximum sentence for the offence they are accused of, says SC judge
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Vanita Devi, 36 (name changed) is accused of killing her two children aged three and six in 2017. Married off at the age of 16, she spent most of her life amid domestic violence. Abandoned by family for the crime she says she never committed, she spent over five years in jail with no hope.
She finally got bail in 2022, thanks to a team from the Square Circle Clinic, a Fair Trial Programme (FTP) of the NALSAR University of Law, Hyderabad. Since then, Ms. Devi, who is now diagnosed with mental illness, spends most of her time helping patients at a clinic, which agreed to give her shelter at a time her own kin left her to deal with the world.
Ms. Devi is one of the over 5,000 cases taken up by the Square Circle Clinic. NALSAR initiated the FTP in 2019 and has worked with undertrials at the Nagpur Central Prison and the Yerawada Central Prison(Pune). Square Circle Clinic-NALSAR was previously known as Project 39A-NLU (National Law University-Delhi).
In its report of work done from 2019 to 2024, the Square Circle Clinic said that out of 5,783 cases dealt by them under the FTP, 41.3% of the accused had no lawyer assigned for trial and 77% had no contact with their families as they were abandoned after being accused of the crime. The report added that 72% of the undertrials had not completed school and 51% of them had no documents needed to pursue the trial and proceedings. As per the report, 52% of the undertrials were under 30 years of age and 58% suffered from at least one disability. It added that 67.6% of the undertrials covered in the programme belonged to disadvantaged caste groups and 79.8% worked in the unorganised sector.
In five years, the teams of the Square Circle Clinic had filed bail applications in 1,834 cases and got 777 cases disposed of. In all, 1,388 clients were released in 2,542 cases.
‘Disturbing findings’
Describing the key findings of the report as disturbing, Supreme Court Justice Vikram Nath on Friday (November 7, 2025) called for urgent reforms in the way legal aid is provided to undertrials. He added that over 70% of India’s prison population consists of people who have not yet been found guilty but they remain in jails.
“And what is more concerning is that, in most cases, they don’t even know that they have a right to [free] legal aid. Of the 74% undertrials, only 7.91% have utilised the legal aid available to them. Even in cases where they do know, they often refrain from seeking it due to distrust stemming from past experiences,” said Justice Nath at the release of a report on fair trials prepared by the Square Circle Clinic.
Justice Nath said that most of the undertrials prefer to engage some private advocate believing that if they pay someone, he will do better than the person who is getting nothing out of it. He criticised the way lawyers file bail applications mechanically, without supporting documents or sureties that the accused can actually produce.
“The accused cannot afford the bail amount, cannot find sureties, and he is back to square one. He just waits, not because the law makes him, but because the system has failed him,” he said, adding that he comes across one such case almost every day where an undertrial has spent time in prison exceeding the maximum sentence for the very offence he or she is accused of.
“There are undertrials charged with bailable offences who remain in custody simply because they could not furnish bail. There are undertrials who would have been acquitted or given suspended sentences had their trials concluded promptly – yet they continue to languish,” he said.
He added that the FTP report calls for a change in how law is taught in colleges. Every law school must treat legal aid clinics as places where justice comes alive, not as extra work to be checked off a list, Justice Nath said.
“If a young lawyer’s first real experience of law comes from meeting an undertrial – from seeing his fear and hope- rather than from reading it in a book, we will have already begun to reshape our profession,” he added.
Published – November 08, 2025 09:16 pm IST
