In a recent order of the Supreme Court dated 28 March 2023 in In Re Policy for Grant of Bail1, the apex court urged state governments to consider whether a certain category of undertrials can be released on a bond of good behaviour. This category can consist of first-time offenders involved in non-serious offences (punishable with less than 7 or 10 years of imprisonment) and who have spent a considerable amount of time in prison (either half or one-third of the sentence for the offence they are tried for).
While the court appeared to suggest this as a one-time measure in the backdrop of India’s 75th year of Independence, it is worth considering whether such a form of release can be made a permanent feature of our legal framework.
We have experimented with several mechanisms to solve the growing number of undertrials populating our prisons, but the method of pretrial release on a bond of good behaviour or probation is relatively less-explored. This piece explains how such a law would prove effective in the Indian context while also examining the challenges in implementing it.
Probation and Pretrial Probation
In India, ‘release on probation’ implies the release of a convicted person into the community under the supervision of a probationary officer instead of sentencing him to imprisonment. It is typically used for less serious offences, first-time offenders, and specifically young offenders.
The law on probation at present is spread across three statutes: The Code of Criminal Procedure, 1973; the Probation of Offenders Act, 1958; and the Juvenile Justice Act2.
However, each of these allows release on probation only after completion of the trial, i.e. after the judgment of conviction. There is no provision which permits undertrials to be released on probation prior to the pronouncement of the judgment. Given the high number of undertrials lodged in India’s prisons, there is a need to examine how a law on pretrial probation can prove to be useful.
The most well-known example of a law allowing the release of undertrials on probation exists in Massachusetts. Upon being released on probation, an undertrial must abide by certain conditions such as performing community service or attending educational lessons, and not contacting the victim. At the end of the probation period, which is usually for 3-6 months, if the undertrial has abided by all conditions, the case against him can be dismissed without holding him guilty.
Advantages of Pretrial Probation
A law on pretrial probation has some obvious advantages for the State. It will achieve the twin aims of decongesting prisons and achieving speedy disposal of cases, both of which, in turn, will contribute enormously to saving the resources of the State.
However, it may prove even more beneficial for undertrials. Given the rate of pendency of criminal cases, a law which allows young/first-time offenders to remain outside of prisons will greatly reduce the risk of recidivism since this category of undertrials would no longer have to remain in contact with convicts or those involved in serious offences. It will also help in aiding the process of their rehabilitation as they get an opportunity to remain active members of society and find gainful employment under the supervision of the probationary officer.
According to the National Crime Records Bureau’s 2021 report on India’s prison statistics, more than 75% of the prison population consists of undertrials, and nearly half of the undertrials are young offenders.
Those involved in less serious offences and otherwise eligible to be released on probation would constitute a significant proportion of this population.
According to the same report, nearly 24,033 current undertrials have ended up spending three to five years in prison, and about 11,490 undertrials have spent over five years. These undertrials are at a greater risk of recidivism unless suitable ones are identified and taken out of the prison system.
Perhaps, the most important advantage that pretrial probation would offer is the release of prisoners without conviction. This is important because a conviction operates as a disqualification criterion for several undertakings. It also has implications on the process of getting a passport, rental accommodation, and various other facilities. This gives pretrial probation an edge over the system of plea-bargaining, which requires an undertrial to admit his guilt and get a conviction recorded against him before being released.
Recently, the Supreme Court also took note of the limited success of plea-bargaining in solving the problem of undertrials and ensuring speedy disposal of cases3. It pointed out that one of the reasons behind this was the hesitancy on the part of the accused to plead guilty and accept conviction. It was in this context that the court suggested an alternative solution of releasing certain categories of undertrials on a bond of good behaviour so as to take them out of the judicial system4.
Even though not specifically mentioned by the apex court, the law on pretrial probation would follow a similar model.
It is pertinent to note that the court in the past has also suggested the Under Trial Review Committees to consider the prospect of release of first-time male offenders between the ages of 19 and 21 who are in custody for offences punishable with less than seven years of imprisonment and have served at least a quarter of the maximum sentence5.
Overcoming the Challenges: Expanding the Role of Nonprofits
India’s existing law on probation is not working as effectively as envisaged due to the limited availability of probation officers. Shockingly, there are merely 350 probation officers across the country. There is also a dearth of training facilities for them. Further, law and order and prisons being a state subject, the implementation of this system varies from state to state due to budgetary constraints of each state. These challenges are likely to be amplified if the scope of probation is extended to undertrials as well.
One way of countering these challenges is to expand the role of nonprofit organisations to bridge the gaps in the system. Rule 17 of the Delhi Probation of Offenders Rules, 2019 allows societies working in the field of aftercare or aid to discharged prisoners, education, social welfare, or rehabilitation of prisoners to seek registration to be recognised as a society providing Probation Officers.
Nonprofit organisations working in these fields could train their employees to work as probation officers. Increasing private participation is likely to make the system of probation effective and improve the supervision of persons released on probation. With more trained probation officers, a law permitting undertrials to be released on probation will yield results once implemented.
Prolonged detention of first-time offenders, young offenders, and petty offenders as undertrials only increases their tendency to re-offend. A law on pretrial probation would not only save them from this but also unclog the criminal justice system by reducing the burden on courts and prisons by taking undertrials out of the system. Given that the Supreme Court has also asked states to consider this possibility, this is the right time to examine this issue. It may finally help us in creating a system that is truly reformative in nature.
 Suo Moto Writ Petition (Crl.) No. 4/2021
 Section 360, Code of Criminal Procedure, 1973; Section 4 of the Probation of Offenders Act, 1958; Section 18(1)(e) of the Juvenile Justice Act, 2015.
 In Re Policy Strategy for Grant of Bail Suo Moto Writ Petition (Crl.) No. 4/2021.
 Re-Inhuman Conditions in 1382 Prisons, Writ Petition (Civil) No. 406/2013, order dated 06.05.2016.