When you think of “justice,” what comes to mind? Perhaps fairness, equality, the presumption of innocence, or the reassuring idea that the law protects everyone equally. But step inside India’s overcrowded prisons, and you might begin to see a different story, one where people who have not even been convicted of a crime are caged for years.
This is the world of pre-trial detention in India, a Kafkaesque trap where liberty erodes silently, and the constitutional promise of justice often feels like a mirage.
At its core, pre-trial detention is meant to be a preventive tool. A suspect is arrested and kept in custody temporarily to ensure that they don’t abscond, tamper with evidence, or intimidate witnesses. In theory, this sounds reasonable. After all, the police need time to investigate before charges are framed.
But in practice, pre-trial detention in India has morphed into punishment before conviction. And that’s a direct assault on the presumption of innocence, a principle deeply rooted in Article 21 of the Indian Constitution and in global human rights law.
The Constitution guarantees every citizen the right to life and personal liberty. This includes the right to a fair and speedy trial. Yet, the misuse of arrest powers, procedural inefficiencies, and judicial delays have turned pre-trial detention into a human rights crisis.
India’s legal system gives the police wide powers to arrest. Under Section 35 of the Bharatiya Nyaya Suraksha Sanhita (BNSS), 2023, the police can arrest without a warrant if they believe a person has committed a cognizable offence or if there is credible information or reasonable suspicion.
Further, Sections 39, 40, and 41 of the BNSS even allow arrests by private individuals or magistrates under specific circumstances. Preventive detention is also recognized in Chapter 12, Section 170, allowing police to apprehend someone to prevent the commission of a cognizable offence.
And then comes Section 187, which allows detention for up to 15 days, extendable to 40 or 60 days depending on the investigation.
On paper, these provisions are meant to protect society. But the Supreme Court has repeatedly warned against arbitrary arrests:
D.K. Basu v. State of West Bengal (1997) – Laid down crucial guidelines to prevent custodial abuse.
Joginder Kumar v. State of Uttar Pradesh (1994) – Emphasized that arrest cannot be made on a mere suspicion or whim.
Arnesh Kumar v. State of Bihar (2014) – Stressed that unnecessary arrests are a violation of personal liberty.
Yet, despite these rulings, arbitrary and unnecessary arrests remain rampant.
Many people confuse pre-trial detention with under-trial detention, but the two are distinct:
Pre-trial detention – The accused is in custody before charges are formally framed. At this stage, the person is still legally a suspect and presumed innocent.
Under-trial detention – The accused remains in judicial custody after charges have been framed, while the trial is ongoing.
In both cases, liberty is curtailed. But pre-trial detention is especially problematic because it keeps people behind bars without even a formal charge sheet against them.
The Universal Declaration of Human Rights (1948), Article 11, makes it clear:
“Everyone charged with a penal offence has the right to be presumed innocent until proven guilty.”
Indian jurisprudence echoes this. The landmark case Woolmington v. DPP (1935) famously declared the presumption of innocence as the “golden thread” running through criminal law.
Our Supreme Court has reinforced this in several rulings:
Selvi v. State of Karnataka (2010) – Held that the state cannot deprive individuals of liberty without due process.
State of Rajasthan v. Balchand (1977) – Declared that bail is the rule and jail the exception, reinforcing liberty as the default position.
Yet, when suspects languish in custody for months, sometimes years before trial, this golden thread begins to unravel.
India’s judicial system is infamous for its delays. Cases drag on for years, sometimes decades. And while justice is pending, pre-trial detainees pay the heaviest price.
Consider these cases:
Rudul Shah v. State of Bihar (1983) – The petitioner was illegally detained even after acquittal. Though he was awarded compensation, no money could return his lost years.
Hussainara Khatoon v. State of Bihar (1979) – The Court highlighted that thousands of under-trial prisoners were languishing in jails for periods longer than the maximum punishment for their alleged offences.
Even today, according to The Commonwealth Human Rights report, over 76% of India’s prison population consists of under-trials—the second highest among Commonwealth nations. And unsurprisingly, the majority of them come from marginalized and economically weaker sections.
Overcrowded Prisons – Indian jails are bursting at the seams. Pre-trial detention is a key driver of this crisis.
Economic & Social Impact – Poor detainees often cannot afford bail, lawyers, or even basic legal awareness, making them easy victims of the system.
Erosion of Liberty – Detention without conviction effectively punishes people before guilt is proven.
Psychological Trauma – The stigma of imprisonment, loss of livelihood, and separation from family leaves scars even if the person is later acquitted.
Courts themselves have recognized this injustice:
Gurbaksh Singh Sibbia v. State of Punjab (1980) – Clarified that detention before conviction is not meant to punish.
Vikas Chawla v. State of NCT of Delhi (2020) – Observed that pre-trial detention severely affects the ability of the accused to defend themselves.
Slow Judicial System – Despite “speedy trial” being part of Article 21, delays remain endemic.
Misuse of Arrest Powers – Arbitrary arrests are often linked to police corruption and misuse of authority.
Inequality in Bail – While bail is a constitutional safeguard, it remains inaccessible to the poor who lack resources or legal knowledge.
Pre-trial detention in India today is less about justice and more about systemic failure. What was supposed to be a temporary preventive tool has turned into punishment without trial.
Case after case like D.K. Basu, Joginder Kumar, Arnesh Kumar, Hussainara Khatoon, Rudul Shah has shown us the cracks in the system. Yet, little has changed in practice.
If India is to live up to its constitutional promise, urgent reforms are needed:
Arrests should be made only in serious cases.
Alternatives to detention must be explored like electronic monitoring or community supervision.
Access to bail should be made easier, especially for the marginalized.
Above all, the judiciary must commit to speedy trials so that “justice delayed” does not remain “justice denied.”
Because in the end, a society’s commitment to liberty is tested not in how it treats the guilty, but in how it treats those who may well be innocent.