Take Proactive Steps To Release Deserving Undertrial Prisoners Under S.479 BNSS : Supreme Court To States/UTs

The Supreme Court on Tuesday (October 22) expressed concern over the inadequate implementation of Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which the maximum period for which undertrial prisoners can be detained.

“A cursory examination of the reports from few of the states and the union territories would indicate that the process of identification of the undertrial who are entitled to benefit under section 479 of BNSS is somewhat deficient”, the Court observed.

Section 479 of BNSS mandates the release of prisoners who have served half the maximum sentence for the alleged crime (except those offence which carry the punishment of life sentence or death penalty). Additionally, first-time offenders, who have never been convicted, are eligible for release after serving one-third of their maximum sentence

“In order to make the process of identification of the deserving undertrials efficient, the Undertrial Review Committee present in each district must play a proactive role by co-ordinating with the Jail Superintendents...The District Legal Services Authority and the State Legal Services Authority should mobilize their panel advocates and para legal volunteers so that the release information of the under trials can be updated. This is necessary as a particular under trial may cross the threshold bar of one third or 50% of the sentence the very next day after the information is collected or thereafter. Therefore this has to be an ongoing process, and steps must be taken to ensure the release of deserving under trials under section 479 BNSS in a proactive way.”

A bench of Justice Hrishikesh Roy and Justice SVN Bhatti was dealing with a writ petition concerning overcrowding in the prisons across India. The Court on August 23, 2024 had held that the beneficial provision of Section 479 of BNSS would apply retrospectively to the undertrials across the country, i.e., to all undertrials in cases registered before July 1, 2024.

The Court had directed jail superintendents nationwide to process applications for the release of eligible undertrials under Section 479, in order to alleviate the issue of prison overcrowding. Further, it had sought reports within two months from each state and union territory detailing the number of undertrials eligible for release, the applications filed for their release, and the number of actual releases.

Today, the Court noted that only 19 states/UTs out of 36 have filed reports. It further observed that the identification process for eligible undertrials under section 479 was lacking in several states and union territories. For example, the report filed by State of Andhra Pradesh indicated that the state had no undertrial prisoners eligible for release under Section 479. The Court noted that if this information is correct, no further comment is required. However, if this is inaccurate, necessary steps must be taken to identify eligible undertrials properly.

Reports from various states and union territories indicated that some eligible undertrials had been identified, and applications for their release were being processed. However, the Court noted release orders were not yet obtained. The Court added that the reports did not indicate why some undertrials, despite being eligible under Section 479, had not yet been released.

The Court directed all states and union territories to submit their respective responses by November 8, 2024, in compliance with the order dated August 23, 2024. It called for the Undertrial Review Committees in each district to play a more proactive role, working with jail superintendents to ensure eligible undertrials are identified and released promptly.

Further, the Court directed all District Legal Services Authorities and State Legal Services Authorities to mobilize their panel advocates and paralegal volunteers to update the release information of undertrials continually.

The Court also highlighted the toll of incarceration, quoting the words of author Oscar Wilde while he was incarcerated –

“I know not whether loss be right or whether laws be wrong all that we know who be in jail is that the jail wall is strong. And that each day is like a year, a year whose days are long.”

“An under trial who deserves release under the provisions of section 479 BNSS deserves consideration under the beneficial legislation enacted from 1-7-2024 as the agony of the person who is incarcerated can only be felt by the one within before 4 corners of the jail”, the Court observed.

As per the Court's directions, reports from the states and union territories must also include reasons why a particular undertrial, despite falling under the permissible category, has not yet been granted the benefit of release.

Additionally, the suggestions provided by the amicus curiae regarding steps to reduce overcrowding in prisons have to be circulated to all standing counsel of the states and union territories.

The Court kept the case on November 19, 2024.

Case no. – Writ Petition (Civil) No. 406/2013

Case Title – In Re-Inhuman Conditions In 1382 Prisons 

Citation : 2024 LiveLaw (SC) 836

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