The Retributive Turn: How Indian Courts Transform Pre-trial Detention into Punishment

Prisons are primarily intended for convicts. However, in India, approximately 70% of prisoners are undertrial detainees (NCRB 2020), that is, individuals held in custody by judicial order while awaiting trial (Heard and Fair 2019).Prisons are primarily intended for convicts. However, in India, approximately 70% of prisoners are undertrial detainees (NCRB 2020), that is, individuals held in custody by judicial order while awaiting trial (Heard and Fair 2019). As a matter of principle, personal liberty should not be deprived unless a person is found guilty through due process. Yet, pre-trial detention—a form of incarceration involving the deprivation of liberty (Murphy 2008)—can be imposed without a completed trial, often bypassing rigorous standards of proof. The United Nations (1988) defines a detained person as “any person deprived of personal liberty except as a result of the conviction of an offence.” Unlike post-conviction imprisonment, pre-trial detention does not require a formal determination of guilt (Wiseman 2014). Simply put, when an accused person is brought before the court after arrest and judicial custody is ordered, it constitutes pre-trial detention.