On freeing the undertrials

Udayan Hazarika

(The writer can be reached at udayanhazarika@hotmail.com)

The Union Government ap-pears to be very keen on im-plementing the provisions of the Bharatiya Nagarik Suraksha Sanhita (BNSS) pertaining to releasing the undertrial prisoners on completion of the maximum period as specified by the Act. This is evident from the latest statement of the Union Home Minister in a meeting to discuss commemoration of the auspicious Constitution Day when he highlighted the necessity to implement the provisions contained in Section 479 of BNSS in toto, saying that the government wants to make sure that not a single prisoner remains in the jails of India who has already spent one-third of his sentence in prison and still has not been released either on bail or bond, as the case may be.

The provision under Section 479 of the BNSS, which came into force on 1st July 2024, is not a new one, as it has its roots in the corresponding Section 436A of the Criminal Procedure Code 1972 (Cr. PC). Both the sections in the Acts have their own characteristics, whose basic concern is the release of undertrial prisoners after the specified period of their detention. An analysis of the relevant provisions of the Acts shows some striking differences in the provisions. Firstly, the provision of Section 479 of the BMSS lays down the upper limit of the period for which an undertrial prisoner can be detained. This provision is applicable in the case of i) those regular undertrials who have already spent half of the maximum sentence in jail and 2) those first-time offenders who have already spent one third of their maximum sentence in jail. This new provision in the BNSS reads, “Provided that where such a person is a first-time offender (who has never been convicted of any offence in the past), he shall be released on bond by the court if he has undergone detention for the period extending up to one third of the maximum period of imprisonment specified for such offence under the law.” It may be noted that a restriction of not allowing release on bail, however, has been imposed on the person who is an accused, and investigations are pending against him. The CrPC, however, has not made any differences between a first-time offender and a regular offender. Moreover, the CrPC lays down a uniform period for the release of the undertrials, which is one and a half times the period of the maximum prescribed imprisonment. Secondly, in the case of BNSS, the conditions laid down at 1) above shall not be applicable in the case of the persons committing offences for which death and life imprisonment are specified as one of the punishments. But the CrPC has excluded only those undertrial prisoners from the purview of the provision 436A who have committed an offence for which “death” is a punishment. Thirdly, the CrPC provides release on personal bonds with or without sureties for all types of prisoners, but the BNSS provides release on bail for general cases and release on personnel bonds for the first-time offenders. Fourthly, the CrPC has not specified anything relating to the applicability of Section 436A in cases of multiple offences, but the BNSS has expressly excluded such cases from the purview of Section 479. Fifthly, the BNSS has entrusted the jail authorities to bring it before the court to release the eligible prisoners regularly while in the CrPC; this was just an enabling provision.

In this context, it may also be noted the observations of the Supreme Court on this matter while pronouncing the judgements on the public interest litigation (PIL) in Re-Inhuman Conditions. In 1382 Prisons v. Director General of Prisons and Correctional Services and Ors in July and August this year. The matter relating to prison reforms and related matters has been under the active scrutiny of the Apex Court ever since the former Chief Justice of the Supreme Court of India, Mr. R.C. Lahoti, attempted to attract the attention of the Court on this matter through his letter written to the Chief Justice of India on June 13, 2013. In his letter, he conveyed the pitiable conditions of the 1382 prisons in India, highlighting the facts of overcrowding, unnatural death occurring in those prisons, understaffing, and inadequately trained personnel manning the staff of the prison. The letter also highlighted the absence of any schemes for the reformation of first-time offenders. The Apex Court registered the letter as Public Interest Litigation (PIL) under the subject Re-Inhuman Conditions in 1382 Prisons v. Director General of Prisons and Correctional Services and Ors. Taking cognisance of all the questions raised in the petition, the Court obtained reports of the government on actions taken on each of the matters. The issues and reports on the PIL had been under the scrutiny of the Supreme Court for quite some time, and the Court issued directions to the government from time to time. For the purpose of getting an appropriate view on the issues concerning the overcrowding of prisons and prison reforms, the Court also appointed the senior advocate Gaurav Agarwal as an amicus curiae, who submitted his report on August 13. The report on the issue of the overcrowding of the prisons expressed that one of the solutions to the problem of overcrowding could be the immediate implementation of Section 479 of the BMSS. However, since the new Act came into force with effect from 1st July 2024, the court wanted to know the Government’s view on the matter of giving retrospective effect to this specific section. The views of the government came positively through the solicitor general.

The Apex Court, considering all aspects and taking the Union Government’s statement on the matter of giving “retrospective effect” to Section 479 on record, issued a judgement that Section 479 of the BMSS would apply retrospectively to the cases that were registered against the first-time offenders even before the BNSS came into force on 1st July 2024. A two-judge bench comprising justices Hima Kohli and Sandeep Mehta directed the superintendents of jails across the country to process the applications of the accused for bail accordingly. The Court directed that “The said steps shall be taken as expeditiously as possible and preferably within three months.”

However, neither the time limit fixed by the Supreme Court, i.e., three months from the date of the order, which has already elapsed, nor the direction of the Union Home Minister, i.e., the Constitution Day on 26th November, appear to be feasible dates to achieve the tasks entrusted to the jail authorities. Within this period, the jail authorities are supposed to file affidavits before the court giving details about the list of undertrial prisoners who are eligible to get the benefits of Section 479 of BNSS, numbers of applications that have been filed before the concerned courts for their release, and up-to-date information about the number of undertrials actually released on the day of filing the affidavit. The progress on this account, however, was not found satisfactory by the court, as out of the 36 states and union territories, only 27 have reported so far. The Court issued the second direction on 19th November, again directing the jail authorities to work out the list of undertrial eligible prisoners’ gender identities.