Until I read Raju Ramachandran’s mind-clasping book, 14 Lawyers, I had not heard of Pushpa Kapila Hingorani (1927-2013, picture). My loss, not hers! Now that I know of her and of her work, I am never going to forget her or her phenomenal achievement.
The fourteen personalities about whom Ramachandran writes are, each one of them, achievers in different fields of the law, each a unique person. Why Pushpa Kapila Hingorani, Kapila for short, has made me write this column is that Ramachandran’s word portrait of her tells us how she changed for all time the narrative on prisons and prisoners in India of whom a staggering 70% and more were then and still are ‘undertrials’.
That is the category of prisoners who have been jailed but not convicted yet and may well be wholly innocent. Many of them have been in prison for longer than the sentence they would have served had they been convicted and given the longest jail sentence envisaged for that crime. Lawyers know that category well. But most of us do not.
Kapila made her dramatic contribution to this ‘cause’ way back in 1979, her stage having two ‘sets’ — Bihar’s jails and the Supreme Court of India with Justice P.N. Bhagwati (1921-2017) and his brother judge, Justice D.A. Desai (1920-2004), constituting the two-member bench that decided in favour of her principal client, Petitioner Hussainara Khatoon, who had fled Yahya Khan-ruled East Pakistan and sought refuge in Bihar, getting clamped in ‘protective custody’ which stretched to four and more years.
Let me share a few basic facts about her. Ramachandran tells us in his precise but uncannily engaging style that Pushpa was born to an Indian family in Nairobi, Kenya, in 1927 and qualified as a barrister from Lincoln’s Inn in 1960 and came to work in India. That made her a migrant-lawyer in India. Meeting her future husband in another migrant-lawyer, the Karachi-born Sindhi, Nirmal Hingorani (1921-2015), in the Supreme Court’s cloisters, she became, with him, a naturalised Indian national. Neither of them could have satisfied the onerous requirements of an SIR verification today. But I have strayed. This column is not about exclusions and inclusions in India’s electoral rolls. It is about exclusions and inclusions in the stream of India’s life.
Before coming to that theme, I must turn to a person critical to the story. Khusro Faramurz Rustamji (1916-2003), iconic officer of the Indian Police Service who was chief security officer to Prime Minister Jawaharlal Nehru from 1952 to 1958, going on to be the founding director-general of the Border Security Force and, still later, achieve permanent renown as a member of the First National Police Commission, penned two articles for The Indian Express on his findings about the conditions of the undertrial prisoners languishing in Bihar’s jails for long periods without a trial. Kapila, on reading these shown to her by her husband, Nirmal, was shocked but more, she was ignited to action. She filed a petition in the Supreme Court which was admitted after much wrangling on procedural matters. It came to be celebrated as Hussainara Khatoon & ORS vs Home Secretary, State of Bihar, Kapila herself being styled thereafter as ‘the mother of PILs’. The orders in her favour, of Justice P.N. Bhagwati and Justice Desai, led to the release of undertrials in Bihar and, all told, over 40,000 undertrials across the country. 40,000? This is not a typo for 4,000 or 400. The figure is 40,000 — released as a result of one order in one case fought by Pushpa Kapila Hingorani, Kapila for short and Kapila forever.
Thanks to 14 Lawyers, I asked another lawyer, also a woman, who has done steady work for prison reform over decades, Maja Daruwala, how many undertrials were today ‘languishing in India’s prisons’. Very rightly, she referred me to the factsheet issued by the National Crime Records Bureau which despite being about 2024, namely two years old, is precise and informative. There were, it said, as of December 31, 2024, 5,09,012 prisoners in 1,331 jails across the country. Of these, 3,68,883 or 72.5% are undertrials. And out of the 3,68,883, a total of 83,669 undertrial prisoners are illiterate and 1,46,909 educated below the tenth standard, constituting 62.5% of the total undertrial inmates. In other words, the majority of the majority of prisoners in India are illiterate or semi-literate and are poor. And may well be innocent! They need the help of the helpless. I then asked Maja five questions. I give them below, seriatim, with her answers.
1. Is enough being done to help undertrials get speedy justice?
Not by a long shot. There are many mechanisms, legal aid, undertrial review committees, legal aid defence counsel schemes, National and State Human Rights Commissions, Boards of Visitors for jails and free panel lawyers from the National Legal Services Authority. There is patchy data about them all but we don’t know how effective they are. What is the outcome in the end if for decades three quarters of those that are in jail are still undertrial folk? There has to be accountability for performance.
2. Is the amendment to the CrPC for the release of a category of them against a personal bond being implemented seriously?
On the release provision (436A CrPC, now Section 479 BNSS), the law is strong on paper, with retrospective application and a duty on jail superintendents to move courts to get eligibles released. But in practice, compliance is patchy, the early numbers seem tiny and concentrated in a few states. As always, the common thread is a gap between statute and delivery, and weak data to measure it.
3. Can/should someone do another Kapila type habeas corpus for them?
Much water has flown under the bridge since Kapila Hingorani’s Hussainara Khatoon matter. A fresh habeas corpus petition of that kind is possible, but it is not the best tool today. Courts are generally reluctant to use habeas where detention follows a judicial remand order, and Hussainara worked because the detention was plainly unlawful.
4. Can the Supreme Court of India monitor the process?
The Supreme Court is already conducting a continuous mandamus-type monitoring of jails and undertrials through its 2013 suo motu matter In Re: Inhuman Conditions in 1382 Prisons, which led to a 2024 order applying Section 479 of the BNSS retrospectively to track prisoner
eligibility and releases. However, State compliance remains patchy, and the top court’s attention is often episodic.
A major pan-India push was launched via a March 2026 Supreme Court directive, which ordered all high courts and state DGPs to submit detailed data and strictly track languishing undertrials. Multiple high courts across India also actively run localised cases targeting prolonged lengths of stay and the alarming numbers overcrowding prisons.
5. Can a survey be undertaken of the UT status in India?
Partial surveys exist (such as the National Crime Records Bureau’s annual Prison Statistics India, reports from the National Legal Services Authority and Undertrial Review Committees, the India Justice Report, and studies by Project 39A), but they only provide aggregate counts.
What does not exist is a case-by-case audit tracking every undertrial’s detention length, charges, trial stage, access to a lawyer, and eligibility for release. A court-ordered, time-bound audit of this nature, conducted via jail superintendents, legal services authorities, and the high courts with published results, is likely the most thorough approach. However, given staff shortages and heavy workloads, it would be best to pilot it and then review its outcomes, then expand. You can’t treat people like statistical problems. You have to see each one as an individual with an absolute right to fair and speedy access to justice. It’s not a question of numbers but of life and liberty promised under the Constitution.
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A Kapila moment has arrived for India’s undertrials. We have Hussainaras aplenty in our jails. We also have Kapilas in our midst who have made the cause of prison reform their own, like the globally acknowledged Rani Dhavan Shankardass and Maja Daruwala whom I have quoted above extensively. In 14 Lawyers, we have Rustomji speaking again. But will judges today become what CJI Bhagwati and Desai became in 1979? Undertrials place our judicial system under trial, no less.