Two weeks ago, the Union Ministry of Home Affairs (MHA) issued an advisory to all states and Union territories (UTs) to be ‘kind and fair’ to ‘undertrials’ while implementing the Bharatiya Nagarik Suraksha Sanhita, 2024 (BNSS).
Readers will recall that the BNSS replaced the erstwhile Code of Criminal Procedure, 1973 (CrPC) in July as part of the NDA government’s programme of ‘decolonising’ criminal laws.
Undertrials are one of the two major categories of prison inmates. They are held in judicial custody until the trial court decides if they are guilty of the offences they are alleged to have committed. Convicts sentenced to varying jail terms depending upon the gravity of the offences constitute the second category. A small number of detenues sent to jail under preventive detention laws constitute a third category.
Depending upon the gravity of the crime(s) and the circumstances due to which they are unable to secure bail, undertrials languish in prison for different periods of time, ranging from a few months to several years.
According to the 2023 report of the department-related Parliamentary Committee on Home Affairs on ‘Prison Conditions, Infrastructure and Reforms’, more than three-fourths (77.1%) of prison inmates in 2021 were undertrials – in other words they remained incarcerated even though no court had judged them guilty.
At the end of 2022, there were 4.34 lakh undertrial prisoners (as compared to 1.33 lakh convicts) in the 1,330 jails located in different parts of the country. The National Crime Records Bureau (NCRB) has not released the figures for 2023 yet.
What does the MHA’s advisory say?
The MHA has written to the chief secretaries and the heads of department of prisons and correctional services across the country highlighting the urgency of implementing Section 479 of the BNSS in order to deal with the problem of overcrowded prisons.
According to this provision, undertrials who have completed at least one half of the maximum duration of imprisonment they would get if found guilty by a competent court, may be released on bail.
Further, undertrials who are first time-offenders and who have not been convicted of any offence in the past are eligible to be considered for release on a personal bond if they have languished in prison for at least one-third of the maximum period of punishment they may attract if found guilty.
The release of undertrials belonging to both categories is subject to certain conditions. However, offenders who are alleged to have committed offences punishable with the death sentence or life imprisonment are excluded from availing the benefit of Section 479.
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The MHA points to the statutory obligation of the superintendent of the prison where the undertrial is detained to initiate bail/bond proceedings by moving the appropriate court.
Next, the advisory points to the August 2024 order of the Supreme Court in the ongoing case Re: Inhuman conditions in 1382 Prisons that undertrials against whom cases were registered before the commencement of the implementation of the BNSS in July may also avail the benefit of this provision through the intercession of the jail superintendent.
The MHA reminds all states and UTs that relevant information such as the name of the undertrial, the type of offence(s) allegedly committed, the maximum period of imprisonment possible under the law and the date of completion of one-half or one-third of such a prison term is available on the E-Prison portal for jail superintendents to access at the click of a button.
Last, the MHA reminds the states and UTs about the scheme it had launched in 2023 for providing ‘support to poor prisoners’ who are unable to secure bail due to financial constraints and urges them to ensure that undertrials who are socially disadvantaged or belong to low-income groups are given support to avail this scheme’s benefits.
Is Section 479 BNSS a gift of the ‘decolonised’ criminal law procedure?
The answer to this question is both “no” and “yes”.
In fact, Section 479 of the BNSS has a predecessor in the erstwhile CrPC. Section 436A, which was inserted in the CrPC in 2005 under the UPA government, also permitted the release of undertrials on bail if they had spent at least one half of the maximum prison term they would get if found guilty.
In both the CrPC and the BNSS, the decision to grant bail or not to in such cases is that of the competent court. The public prosecutor must be heard by the court on whether the state opposes the bail application and if so for what reasons. The court’s decision to grant bail to the undertrial against such sureties as it may fix or to reject their application must be in writing.
The BNSS introduces two innovations to this scheme of things. First, Section 479 allows for the release of first-time offenders on bond if they have not been convicted of any offence in the past, subject to the procedure mentioned above. Second, the jail superintendent is now given the duty to initiate this process by moving the bail application in the competent court. Both these provisions were absent in the CrPC.
Undertrials charged with crimes inviting life term in prison deprived of Section 479 cover
Section 479 of the BNSS also waters down its predecessor provision in the CrPC considerably.
The first dilution is with regard to the rights of undertrials who might receive a sentence of life imprisonment if found guilty. Under the erstwhile CrPC, they could also apply for bail under Section 436A. Strangely, Section 479 of the BNSS takes away this right and puts them at par with undertrials accused of crimes that attract the death penalty.
The clause-by-clause explanation of each provision attached to the BNSS Bill, 2023 tabled in parliament does not contain any justification for the deprivation of an important statutory right for this category of undertrials that was available until July 1, 2024.
Nor does the department-related Standing Committee on Home Affairs which vetted this Bill (along with the other two Bills that replaced the Indian Penal Code, 1860 and the Indian Evidence Act, 1872) bother to explain this change in state policy in its report submitted to parliament.
Another major cause for worry in this context is the likely fallout of the August 2024 order of the Supreme Court that is attached to the MHA’s advisory. The court had noted and directed as follows:
“2. Having regard to the fact that the substituted provision under the BNSS is more beneficial vis-a-vis Section 436A of the [CrPC], 1973, wherein the period undergone by the first time offender was prescribed as up to half of the maximum period of imprisonment specified for such an offence, this court had called upon the learned additional solicitor general to obtain instructions from the department and submit a clarification regarding application of the said provision to all undertrials across the country.
3. Today, Ms Aishwarya Bhati, learned additional solicitor general, submits that pursuant to the aforesaid order, instructions have been obtained from the department to the effect that the aforesaid provision under the BNSS shall apply to all undertrials in pending cases irrespective of whether the case was registered against them before July 1, 2024, the date when the newly minted legislation has come into effect.
4. In that view of the matter, it is deemed appropriate to direct 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 one-half/one-third, as the case may be, of the period mentioned in sub-section (1) of the said provision, for their release on bail. This step will go a long way in easing overcrowding in jails which is the primary focus of this court in the present petition.
5. The aforesaid steps shall be taken as expeditiously as possible, preferably within two months from today. Reports shall be submitted by the superintendent jails to their respective heads of the department within the same time line for a comprehensive affidavit to be filed by each state government/Union territory through their respective chief secretaries. The affidavits shall furnish the details of the number of undertrials who would be entitled to extension of the benefit of Section 479 of the BNSS, the number of applications moved before the concerned courts for their release and the number of undertrials actually released by the date of filing of the affidavits.
6.Compliance of the aforesaid provisions shall be made by the concerned district and session judges in all states/UTs who are in-charge of the Under Trial Review Committees so that there is no laxity in implementation of the aforesaid beneficial provision.”
(emphasis supplied)
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Taken at face value, this direction appears salutary and is intended to give the benefit of the new BNSS provision to both the ‘half-period’ and ‘one-third period’ categories of undertrials who entered prison when the CrPC was in vogue.
However, a deeper examination reveals the likelihood of obstacles arising to prevent their release from jail. Will the jail superintendent forward to courts bail applications for first-time offenders who are accused of crimes that invite life imprisonment even if they were committed prior to the commencement of the BNSS?
Similarly, will undertrials who belong to the half-period category also be considered for bail under the BNSS even if they were charged of committing crime(s) inviting a life sentence when the erstwhile CrPC was the applicable law?
The change in state policy affected by a mere chronological dividing line (July 1, 2024) appears arbitrary as no reasoning is available in the public domain as to why their right to seek bail has been taken away under the BNSS.
This is a grey area the court must address urgently.
Second, under the CrPC, a person accused of committing multiple crimes in the same incident or in separate cases could also apply for bail and the half-period would be calculated based on the length of the prison term each crime would attract.
In September 2014, the MHA issued detailed guidelines explaining the methodology of calculating the half-period for undertrials who were charged with multiple offences inviting different jail terms. According to this advisory, the half-period must be calculated on the basis of the gravest of offences that attract the maximum prison term and not the lesser offences inviting shorter sentences.
Section 479 of the BNSS bars a court from granting bail to a person accused of committing more than one offence in one case or if multiple cases are pending against such a person.
For example, if an individual initially intended to commit robbery only but ended up causing grievous hurt to a victim in the process, as an undertrial he/she would not be eligible for any relief under Section 479 of the BNSS. Similarly, if a person is charged with the crime of forgery in one case and cheating and fraud in a completely different case, the benefit of Section 479 of the BNSS would not be available to him/her either.
The problem that is pointed to above is likely to crop up in this context also. Will undertrials who are charged with committing multiple offences in the same case or in different cases be considered eligible under the one-third period or half-period eligibility provisions if such crimes had been committed prior to the commencement of the BNSS?
If Section 436A of the CrPC were to be applied to them because that was the law in force when they allegedly committed the offence, they could be considered for bail. But if Section 479 of the BNSS is applied as per the Supreme Court’s direction, they could be denuded of this right.
How just and reasonable is this? This is the second grey area the court must address urgently.
Third, Section 479 of the BNSS lacks clarity about the court’s powers to refuse to release first-time offenders if the state opposes their applications. The first two provisos to Section 479 of the BNSS read as follows:
“Provided that where such 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 that law:
Provided further that the court may, after hearing the public prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail bond instead of his bond.”
(emphasis supplied)
While the first proviso to Section 479 of the BNSS states the right of the undertrial belonging to the one-third period category to be released on bond, there is no mention in it of the state’s ability to oppose his/her application through the public prosecutor (PP).
The second proviso clearly applies to the half-period category of undertrials only wherein the PP may oppose their applications for release. Neither the first version of the BNSS Bill tabled in parliament nor the second version tabled after it was revised based on the recommendations of the department-related Parliamentary Committee on Home Affairs talk about the possibility of the PP opposing the release of the one-third category of undertrials.
Does the absence of such a provision imply that the state cannot oppose the application of this category of undertrials? Or is this a case of shoddy drafting? This is the third grey area which the Supreme Court must urgently clarify.
Will Section 479 of the BNSS benefit more or fewer undertrials?
Before answering this question, let us look at the efficacy of the erstwhile Section 436A of the CrPC. Was it helpful in getting more undertrials out of prison or not?
Every year, the NCRB publishes its Prison Statistics in India report, which contains a wealth of data with regard to prisons, prison inmates, prison staff, budgets and expenditure patterns among other things. The NCRB began releasing data about the implementation of Section 436A of the CrPC only 2016 onwards i.e., more than a decade after it came into force.
Please see Table 1 below.
In 2016, as many as 13.08 lakh undertrials were released from prison. Only 0.07% of them got the benefit of Section 436A of the CrPC. The remaining 99.93% undertrials were released under other bail provisions contained in the CrPC, including by way of appeal to higher courts or because they were acquitted by the trial courts.
In 2022, 15.43 lakh undertrials were released from prisons across the countries – an increase of almost 18% over the 2016 figure. However, the proportion of undertrials released under Section 436A of the CrPC fell to 0.03%.
Further, as far as the eligibility criteria are concerned, in 2016, only 0.119% of undertrials were qualified for release under Section 436A. This proportion was the lowest in 2022 at 0.096%.
That is not all. The success rate of bail applications under Section 436A of the CrPC was almost 60% in 2016. In other words, almost six of every ten eligible undertrials were released under this provision. In 2022, the success rate had fallen to 36% – i.e., only about three of every ten applications under Section 436A were successful.
The NCRB also publishes the gender breakup of undertrials eligible for release under Section 436A and those who were successful. See Table 2 below. The success rate for male undertrials was at its highest in 2016 at 60.35%. In 2022 it had plummeted to 36.87%.
The figures show a declining trend in all years except 2021. Even as the number of eligible male undertrials fell by almost 20% in 2022 as compared with the 2016 figure, the success rate had not improved.
As for female undertrials, a see-saw trend is noticeable. The proportion of successful women applicants was 60% in 2016 and reached 100% in 2018, but it had dropped to 17.31% in 2022 – the lowest since 2016. After the year 2020, when no woman undertrial applicant was successful, the success rate has declined every year even though the number of women undertrials eligible for consideration under Section 436A has increased from four to 52.
The NCRB began publishing data about transgender undertrials 2020 onwards. In 2022, none of the three eligible applicants could avail the benefit of Section 436A of the CrPC. The data shows that it had become difficult for women undertrials to avail the benefit of that provision.
Conclusion
Section 436A of the CrPC was a salutary provision introduced in 2005 to end the prolonged incarceration of undertrials. However, the data analysed above shows that its effectiveness, in terms of the number of persons who were successful in getting bail, has steadily declined since 2016.
There is an urgent need for making an assessment of the efficacy of this provision by reviewing the case records to find the reasons behind the declining rate of success, with particular focus on women and transgender undertrials.
As for its successor provision, Section 479 of the BNSS, it is likely to be even less effective because of the multiple obstacles placed in the path of release for undertrials. The ineligibility criteria – being charged with offences inviting life imprisonment and being alleged to have committed multiple offences or being an accused in multiple criminal cases – will reduce the number of undertrials who can be considered for release.
What is worse is the strong likelihood of the imposition of these ineligibility criteria on undertrials who were incarcerated under the erstwhile CrPC. In other words, there is a real danger of the diluted portions of Section 479 of the BNSS being applied with retrospective effect by jail superintendents. In what manner the Undertrial Review Committees will facilitate the implementation process remains to be seen.
In my view, the bail provisions in the criminal procedure laws directly emanate from the rights to life and liberty protected under Article 21 of the constitution. Article 21 protects the life and liberty of every person including undertrials, subject to the procedures established by law.
The arbitrariness or fairness of Section 479 vis-a-vis its predecessor, Section 436A of the CrPC, must be tested on the anvil of Article 21 before the Supreme Court without further delay. It is also important that the problems like the lack of procedural clarity with regard to the one-third period category of undertrials is sorted out at the earliest.
No person must be deprived of his/her liberty unless it is absolutely necessary and can be justified by sound reasoning.
Venkatesh Nayak is Director Commonwealth Human Rights Initiative, New Delhi. Views are personal.
