Debangana Nag and Sudha Ganesh
Introduction
The key purpose of a prison is to reform and rehabilitate the prisoners and make them responsible citizens of a nation. However, the reality on the ground emphasises that what is practised in our prisons is the theory of retribution and deterrence. The adverse conditions during long periods of confinement hinder the ability of prisoners to adjust back into society upon release. Amongst the myriads of problems plaguing the prison system today, overcrowding remains one of the most pressing issues.
This article examines a recent development by the Supreme Court, which held that Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) can be applied retrospectively to undertrials all over the country. This decision marks a potential turning point in prison reform as it was previously decided that the provisions of the BNSS, the successor of the Code of Criminal Procedure (CrPC), would be applied only to cases filed after July 1st. However, Section 479 will now apply to cases filed before the given date as well. The order was passed by a division bench comprising Justice Hima Kohli and Sandeep Mehta while hearing the ongoing case of Re-Inhuman Conditions In 1382 Prisons v. Director General of Prisons and Correctional Services and Ors, a Public Interest Litigation (PIL) that addresses the inhumane conditions of prisons in India. The retrospective application of the section could be a crucial step forward in addressing the overcrowding in Indian prisons, which is intended to accelerate the release process of undertrials, which was the primary focus of the present petition.
In this article, we first undertake a comparison between Section 479 of the BNSS and the corresponding provision in the CrPC. Thereafter, we provide a detailed analysis of the Court’s most recent order, discussing its implications and potential impact. Subsequently, we examine systemic deficiencies within the prison system, considering these in light of established judicial precedents and relevant international conventions. Lastly, we turn to the current condition of Indian prisons, critically assessing the limitations of Section 479 BNSS and the Court’s arguably flawed interpretation.
Overview of Section 479 BNSS
Section 479 BNSS replaces Section 436A of the CrPC, which states that undertrials who have completed one-half of the maximum period of imprisonment specified for that offence under that law shall be released on bail. The section also mandates that no such person shall, in any case, be kept in custody for more than the maximum period of imprisonment provided for the said offence under that law.
It is pertinent to note that Section 479(1) contains a substantial element absent in its predecessor by introducing a new leniency for first-time offenders (who have never been convicted of any offence in the past). The proviso allows first-time offenders to be released after serving one-third of the maximum sentence for their offence. However, Section 479(1) excludes offences punishable by death or life imprisonment from this benefit. Additionally, Section 479(2) specifies that individuals facing multiple charges are not eligible for bail, even if they have served more than one-third or one-half of the maximum sentence for any of those charges.
In addition, Section 473(3) requires the Superintendent of the jail to apply to the Court for the release of the undertrial once the detention period has crossed the prescribed threshold. This additional safeguard was not present in the CrPC.
Assessing the Court’s Directive
The present case, Re-Inhuman Conditions In 1382 Prisons v. Director General of Prisons and Correctional Services and Ors., stemmed from a letter by the Former Chief Justice of India, R C Lahoti, which raised concerns regarding four critical issues in prisons: Overcrowding, unnatural deaths of prisoners, understaffing and inadequate training given to the existing staff. He also criticized the lack of reformative schemes provided to the youth and first-time offenders, pointing out the state’s duty to uphold the prisoner’s rights and ensure their safety even in custody.
In a fresh order passed in August 2024, the Court clarified the government’s position and directed the immediate implementation of Section 479 of the BNSS by calling upon Superintendents of Jails across the country, wherever accused persons are detained as undertrials, to process their applications to the concerned Courts upon their completion of either one-half or one-third, as the case may be, of the period mentioned in sub-section (1) of the said provision, for their release on bail.
The Court mandated action to be undertaken expeditiously within two months from the date of the order by all the States and Union Territories to furnish affidavits containing details of the number of undertrials who would be entitled to the benefit of Section 479 of the BNSS. To ensure strict adherence to the said directives, the Court also emphasised the responsibility of District & Session Judges in all States/UTs in charge of the Under Trial Review Committees.
At first glance, the Court’s order appears to be a significant step toward addressing the issue of overcrowded prisons in India. However, a closer examination of Section 479 reveals that the proviso may not be as beneficial as it seems from the Court’s perspective. A more thorough analysis and clarification from the Court are required to ensure that the intended objectives of the order are effectively achieved. (This is discussed further in the article.)
Legal and Judicial Perspectives
In Sunil Batra (II) v Delhi Administration, the Supreme Court held that prisoners do not lose all their fundamental rights upon conviction. The Court emphasised that the right to life and personal liberty under Article 21 also extends to prisoners, and any form of inhuman or degrading treatment violates the Constitution. It also recognised the rights of prisoners under the International Covenant on Prisoners’ Rights. In the case of Rama Murthy v State of Karnataka, the Court identified major problems that plague Indian prisons to this day and pointed out the need to bring uniformity through a Model Prison Manual. Prior cases such as the State of Maharashtra v Prabhakar Pandurang Sangzgiri and Mohan Patnaik v State of Andhra Pradesh expressed the Apex Court’s stance on the rights of prisoners and undertrials making it clear that the right to life guaranteed by Article 21 of the Indian Constitution cannot be ignored. While these cases are not exhaustive, they clarify the judiciary’s longstanding intent of ensuring a life of dignity for prisoners. Following the Court’s directions, the condition of prisoners emerged as a crucial public policy issue for the state to address.
The 78th Law Commission report in 1979 highlighted the issue of overcrowding, with an emphasis on undertrial prisoners. The report flagged several vital concerns, such as the severe conditions of prisons, delayed judicial processes, legal aid, and bail bonds for the release of undertrial prisoners.
The first Model prison manual was released in 2003 following the Court’s directions in Rama Murthy. In 2015, The Ministry of Home Affairs, along with NALSA, NHRC and civil society groups, constituted a committee in 2015 based on a directive of the Supreme Court in the case of Re: Conditions In 1382 Prisons v. Director General of Prisons and Correctional Services and Ors to revamp and remodel the Model Prison Manual with a holistic perspective. The manual provides guidelines for effective administration, management, rehabilitation and ensuring humane treatment in line with various legal developments and the Mandela Guidelines. Since Prisons come under the State list, The Central Government cannot enforce these guidelines, because of which many states have not effectively implemented the manual.
India is also a signatory to the United Nations Standard Minimum Rules for the Treatment of Prisoners, also known as the Mandela Rules, which the UN General Assembly unanimously adopted in 2015. These rules intend to provide fundamental human rights to prisoners, which the Court has recognised as essential principles and has confirmed India’s obligation to uphold them. Further, India is bound by Article 10 of the International Covenant on Civil and Political Rights (ICCPR), which mandates reformation rehabilitation as the critical goal of incarceration, where prisoners must be treated with humanity and dignity.
Present Condition of Prisons in India
The current national average occupancy rate of prisons is over 130%, with some crossing a 180% occupancy rate as of 2023. The highest number of undertrial prisoners were lodged in District Jails (52.1%, 2,26,386 undertrials) out of a total of 4,34,302 undertrials, followed by Central Jails (35.8%,1,55,528 undertrials). Uttar Pradesh reported the maximum number of undertrials (21.7%, 94,131) in the country, followed by Bihar (13.2%, 57,537) and Maharashtra (7.6%, 32,883) at the end of 2022.
In 2022, the National Legal Services Authority (NALSA) ran a campaign to release undertrials, yet the occupancy rates have remained high. According to NALSA’s report, nearly 25,000 undertrial prisoners eligible for release were released on bail, recording a 6% reduction in prison occupancy. There was also an addition of prisons in the country to address the issue of overcrowding. However, the number of prisoners in India has only increased steadily, thereby failing to mitigate the problem of overcrowding.
Overcrowding has far-reaching implications. It leads to conditions that are unsafe for the prisoners as well as the staff employed. The threat of communicable diseases, increased stress, drug addiction and mental health issues are greater in such unsanitary conditions. The congested environment also aggravates any chronic illness a prisoner might be suffering from. The limited medical staff and facilities provided to the prisons cannot keep up with the increasing number of prisoners, putting them at a higher risk in cases of emergency. Overcrowded prisons also affect the morale of the prison staff negatively, leading to increased conflicts, violence, and security issues in the prisons.
Limitations of Section 479 BNSS and Judicial Misstep
The Court’s directive regarding Section 479 BNSS not only aims to alleviate overcrowding but also highlights the broader issue of harsh prison conditions and the need to undertake reformative measures. However, upon a closer examination of Section 479 in its entirety, it becomes clear that its retrospective application does not benefit all individuals in custody. Section 479(1) excludes individuals charged with offences punishable by life imprisonment and death, and Section 479(2) disqualifies those involved in multiple offences or cases from seeking bail under this provision, thus limiting the number of people eligible for bail. Section 479(1), fails to uphold the principle of presumption of innocence, whereas Section 479(2) eliminates the responsibility of the courts and judicial application of mind by a rigid denial of bail to those accused of multiple offences. For the aforementioned reasons, Section 479 may inadvertently contribute to the very issues of overcrowding it sought to address by pre-emptively denying bail to those charged with serious or multiple offences.
The Supreme Court, therefore, failed to look at the section holistically. The clarification regarding the application of Section 479 prove beneficial only to first-time offenders charged with a single offence. Further, the retrospective application of the Section violates the vested rights of the undertrials accused of multiple offences and those punishable by life imprisonment conferred by the CrPC.
Thus, the Court’s narrow perspective that Section 479 is more beneficial and will be a crucial step to alleviate prison overcrowding is misguided. The Court must clarify its position in cases where the new law is unfavourable to prisoners to align with its objective of alleviating overcrowding in prisons, as discussed above.
Conclusion
The issue of overcrowded prisons is a result of various factors- systemic inefficiencies, delayed judicial processes, and deficient infrastructure. As discussed earlier, significant judicial rulings have highlighted the need to uphold the rights of prisoners and ensure they are treated humanely. However, the current provisions of Section 479 undermine these principles since they do not safeguard the rights of all undertrials adequately. Furthermore, the data on overcrowding underscores the urgent need for reform, as the situation continues to deteriorate despite recent legal developments.
Although the recent Supreme Court order aims to provide relief for thousands of undertrials who were left to languish in prisons in a blatant disregard for their fundamental rights, it fails to take a holistic look at Section 479 of the BNSS. By excluding undertrials facing multiple charges or those accused of serious offences, the Court’s interpretation fails to address the broader structural problems that perpetuate overcrowding and injustice.
The Court’s decision reflects a misguided optimism, viewing Section 479 as a pivotal reform when, in reality, it leaves many prisoners behind. To ensure that genuine prison reform takes place and the objective of alleviating prison overcrowding is achieved, the Court must clarify its position, particularly where the new law is unfavourable to certain undertrials. It is the authors’ view that while the recent order is welcome, it must also offer clearer, more inclusive guidelines that extend the benefit of bail more equitably. With these clarifications, the decision could be a step closer to realising the true purpose of India’s correctional institutions—rehabilitation, not retribution.
The authors are second year law students at the West Bengal National University of Juridical Sciences (NUJS).
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