By Dilip Bobb
A staggering 76 percent of prisoners in Indian jails are undertrials, many of whom remain behind bars simply because they cannot afford bail or pay fines, as discovered by a parliamentary panel, last year. The report, submitted to the Rajya Sabha by the Parliamentary Standing Committee on Home Affairs, highlights an urgent need for systemic reforms to address the issue of prolonged incarceration of undertrials. The panel noted that state prison administrations spend significantly more on housing these prisoners than the bail amounts required for their release. It recommended that states and Union Territories (UTs) establish a dedicated fund, to help indigent prisoners pay their fines and secure release.
In January 2023, in the Sonadhar vs State of Chhattisgarh, the Supreme Court order noted that there were 5,000 undertrials in India who were in jail despite being granted bail, of which less than half were provided legal assistance and less than one third had been released. The Court in its order also issued a seven-point guideline for releasing prisoners, including two that said bail conditions may be modified or relaxed if bail bonds are not furnished within one month from the date of grant of bail, and the local courts may not impose local surety because it leads to delay in release of prisoners on bail.
According to statistics available in various crime-related reports, over the past decade, 332 people had to remain in Delhi prisons even after completing their sentences because they were unable to pay the fine required for their release. Of these, 304 were men. Convicts who cannot pay the fine are required to serve additional imprisonment as directed by magistrates. A majority of these inmates stayed in jail for almost six months after completing their primary sentence. Forty men and two women remained in prison for more than six months, but less than a year, according to the latest National Crime Records Bureau report. Additionally, 14 people (13 men and one woman) were held for periods ranging from one to less than two years. Shockingly, 11 men remained in jail for five years or more, and that is just in one Union territory.
In Kerala, despite serving out the sentences, as many as 44 convicts are still languishing in jails due to their inability to pay the fine imposed on them by courts for various reasons, including poor financial situation and being discarded by their families. Those who cannot pay, may be ordered to serve an additional period of imprisonment, typically a portion of their original sentence, as a substitute for the unpaid financial penalty.
This judicial incongruity is directly linked to poverty or being abandoned by their families because of the shame and being isolated in their villages or small towns where the convict hails from. In all the reports concerning those stuck in limbo because of their inability to pay the required fine, a vast majority came from impoverished backgrounds. It’s almost like poverty becomes the punishment apart from the crime they may have committed. The judiciary must accept some of the blame since the decision to impose a fine and its alternative imprisonment lies solely with the judge dealing with the case. Instead of showing compassion and Shakespeare’s famous “quality of mercy” (Merchant of Venice), most such prisoners are sent back to jail to serve an extended sentence. Only a handful of prisoners from poor backgrounds earn enough from making products sold from jails to pay the required fine and gain their freedom after serving the designated sentence.
This poverty trap for prisoners is also added to by an indifferent political class and the bureaucracy that government schemes are filtered through. In 2023, the Ministry of Home Affairs (MHA) had asked all the states and Union territories to provide financial assistance from a central fund to poor prisoners who are unable to secure bail or release from prison because of financial constraints. The communication, called on all states and Union territories to draw an appropriate amount from the fund to provide benefits to all eligible prisoners. The National Crime Records Bureau was designated as the Central Nodal Agency for this scheme. “As you are aware, the Ministry of Home Affairs had introduced the ‘Support to Poor Prisoners Scheme’ in May, 2023, with the objective of providing financial assistance to states and UTs for extending relief to poor prisoners who are unable to secure bail or release from prison due to non-payment of fine on account of financial constraints,” the communication said.
However, the MHA observed that despite repeated follow-ups, funds have remained unutilised as many states and Union territories have not identified the eligible prisoners and not provided the benefit of the scheme. While a few states and Union territories have utilised the funds, the overall implementation of the scheme by them has not been very encouraging, it said.
Under the Standard Operating Procedure (SOP) for implementation of the scheme, states and Union territories were advised to constitute an “empowered committee” in each district and an “oversight committee” at the state headquarters level which would be responsible for sanctioning financial aid to eligible prisoners. The MHA communication said that during the several conferences held with the states and Union territories to review the implementation of the scheme, its importance was consistently emphasised, highlighting its potential to bring relief to the poor prisoners who remain incarcerated due to financial constraints. “It may be appreciated that effective implementation of the scheme can not only help mitigate the problems faced by the poor prisoners, but also contribute towards reducing overcrowding in prisons. The states and UTs are, therefore, requested to make concerted efforts in identifying the eligible prisoners as per the guidelines of the scheme and hold regular meetings of the empowered committees in each district for providing relief to the poor prisoners,” the MHA report said.
The scheme provides financial aid of up to Rs 40,000 for undertrials and Rs 25,000 for convicts, based on the approval of the empowered committee chaired by District Collectors. Oversight committees at the state level include the Principal Secretary (home/jail), Secretary (law), Secretary-State Legal Services Authority, Director General/Inspector General (Prisons) and Registrar General of the High Court, who decide in such cases.
It is obviously a ponderous and challenging process to get all these officials together on a specific date and since the prisoners whose fate they preside over are mostly from poor backgrounds with no contacts who can help them except for NGOs, the incentive to meet and decide who is set free or not loses urgency.
Based on data submitted by the High Courts, 24,879 accused who were granted bail by trial courts continue to be in custody due to their inability to furnish bail bonds, according to a report in October, 2024 by the Centre for Research and Planning (CRP), the Supreme Court’s research wing. Allahabad (6,158), Madhya Pradesh (4,190), Bihar (3,345) and Bombay (1,661) High Courts were identified as housing the most number of undertrials in state prisons due to their inability to pay bail bonds.
An October 2024, the MHA advisory revealed that “Many states/UTs are yet to take full advantage of this scheme despite repeated persuasion in this regard”. The report indicated the limited impact of the scheme. This is also backed by Right to information (RTI) requests filed by IndiaSpend, a private entity that gathers data in various fields, which revealed that it sought information on formation of empowering committees and the number of prisoners identified for release under the scheme in 2023 and 2024. Eight states: Uttar Pradesh, Odisha, Madhya Pradesh, Chhattisgarh, Kerala, Bihar, West Bengal and Delhi, responded The responses showed that:
- Maharashtra was the only state which has released prisoners—ten undertrials and one convict—through the scheme.
- Odisha said that it had identified four convicts and three undertrials, but no one had been released as on the date of the response. Odisha, in fact, held 84 district level meetings, but did not release any prisoners. Its oversight committee had met just once. The state has also identified one undertrial prisoner whose bail amount is more than Rs 40,000, but the case was rejected by the oversight committee. Two other convicts were identified whose bail amount was more than Rs 25,000, and their cases were still under consideration.
- Delhi identified 103 eligible convicts and undertrials; two jails said they did not release any prisoners, one said it did not maintain such data. Delhi had constituted 16 empowered committees, one for each of its jails, and an oversight committee, RTI replies show.
- Three Bihar jails shared data of custodial populations released through legal aid from District Legal Services Authority (DLSAs), but not through the scheme. In Bihar, only Bennipetti jail in Madhubani district said that it had constituted committees in the state, although it did not specify if it was at the state or district level. The RTI data shared by Betia, Muzaffarpur and Samastipur jails were related to prisoners released through legal aid support, and not specifically identified for the scheme. The jail did not share any other data.
- Kerala did not share data on those released under the scheme, but said that the prisons department had opened a zero-balance subsidiary account for the scheme’s implementation.
- West Bengal has not implemented the scheme as yet.
- Uttar Pradesh, Madhya Pradesh and Chhattisgarh did not share data by the time of publishing.
While states and Union territories have been markedly negligent in making use of the poor prisoner scheme, the courts have also voiced their concerns. The Madras High Court called the practice “appalling”, stating it was unconstitutional to imprison people solely due to poverty and their inability to pay. The Supreme Court has urged a more humane approach, emphasizing that poverty should not be a reason for prolonged detention beyond the original sentence. However, advocates have pointed out that the judicial system’s reliance on fines to cover legal costs creates a cycle of debt and incarceration for the poor. There are also NGOs and organisations like the National Legal Services Authority (NALSA) that provide free legal aid to impoverished prisoners, including help with fine payments.
In August 2025, the Supreme Court directed all states and Union Territories to immediately release any prisoners who had completed their sentences, but were still in jail.
Section 436 of the erstwhile Criminal Procedure Code (now replaced by Section 478/479 of the Bharatiya Nagarik Suraksha Sanhita, 2023) said that if person in jail is unable to get bail even a week after his release orders have been passed, that person should be considered indigent and be released on personal bond. However, that decision lies with the presiding magistrate or judge. The issue of local surety is a significant problem, particularly for prisoners who are not from the local area or jurisdiction.
In the 1978 case of Moti Ram vs State of Madhya Pradesh, the Supreme Court had asked magistrates to consider fair and affordable bail conditions, and release prisoners eligible on personal bonds. “There is a tendency for courts to “insist on monetary security with surety where only release on bail is provided for, without using the option of releasing an indigent accused on personal bond”, according to a IndiaSpend report.
In some states, judges ask for surety which means someone has to stand as a guarantor. For indigent prisoners, that is a virtual impossibility. The prisoner may have family in another state or region who may have cut ties and refuse to acknowledge a criminal in the family. The problem of prisoners unable to access the finance to pay a penalty/fine despite having served their sentence is also linked to the overcrowding of prisons. According to the India Justice Report 2025, the national average occupancy rate in jails is of more than 131 per cent which includes 76 per cent of undertrials. With a reported 5,000 undertrials in India being stuck in jail despite being granted bail, the record does speak poorly. Literally.
—The writer is former Senior Managing Editor, India Legal magazine