Originally published on The Proof of Guilt blog, this post was written by Hany Babu and Surendra Gadling, who have been detained in prison as ‘undertrials’ since 2018 and 2020 respectively. This piece was published simultaneously with the Indian Constitutional Law and Philosophy blog.
Dedicated to the fellow undertrial prisoners languishing in the prisons of India with the hope that the system would sooner than later wake up to their plight; and that one day prisons, if not still obsolete, would at least have become places where those proven guilty are held, and not places that incarcerate those who are presumed to be innocent.
The primary author would like to thank his co-defendants, Arun Fereira and Vernon Gonsalves, for the enriching discussions – stolen at times in the corridors of the court, at times on the drives to and from the court, and at times in the ‘After’ hours; Vernon, for his characteristically incisive remark ‘You need to think more!’ after going through – what I now realise was – a much cruder earlier version of this piece even before the BNSS had kicked in; and Arun, whose name may have been among the authors had their Lordships not set him free, for owning the idea that the Code should have more provisions for statutory bail. Needless to say, neither of them is to shoulder the shortcomings of this piece.
Introduction
“How long is too long a period of incarceration as an undertrial for a court to conclude the right of speedy trial is defeated?”
This was a question raised by the Delhi high court in Mohamed Hakim v. State (NCT of Delhi) 2021 SCC OnLine Del 4623, in the context of the grant of bail for an undertrial prisoner. We raise a similar question regarding the maximum period of detention permissible by law for an undertrial prisoner.
Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the section that deals with the question of the maximum period that an undertrial can be detained, largely reproduces the language of its predecessor, Section 436-A of the Code of Criminal Procedure, 1973 (CrPC), the clause that no person should be imprisoned for a period exceeding the maximum period of punishment specified for his offence.
This essay argues that the existing law, which allows a person to be detained for a period equal to the maximum period of imprisonment specified as punishment for his offence, only serves to legitimise the award of “surrogate punishment” equivalent to the maximum punishment to that person, without conducting trial and determination of the question of guilt or innocence of that person according to procedure established by law.
Such a law has no place in the statute book if presumption of innocence is one of the cornerstones of criminal jurisprudence.
Further, if “bail, not jail” were followed in letter and spirit, the question of prolonged pre-trial detention would not arise. In practice, however, the combination of the question of ‘prima facie guilt’ – another principle that goes against the presumption of innocence – and the tripod test of the possibility of the accused tampering with the evidence, influencing witness and/or evading trial, together conspire against the grant of bail.
In such circumstances, it is only those who can afford to hire expensive lawyers and knock the doors of the constitutional courts who can manage to secure bail. For the rest jail becomes the rule.
In such a scenario an act of balancing is called for. We argue for a judicial reading of the BNSS that will provide us with the framework of finding such a balance.
We set out by drawing a comparison between Section 479 of the BNSS and its predecessor, Section 436-A of the CrPC. It can be seen that far from being an improvement on Section 436-A of the CrPC with respect to reducing the period that an undertrial prisoner can be detained, Section 479 of the BNSS is more restrictive in its application.
Be that as it may, what makes Section 479 of the BNSS problematic are certain anomalies we discuss below. We shall first take a look at Section 436-A of the CrPC and then go on to Section 479 of the BNSS before putting forth our suggestions regarding the maximum period of detention for an undertrial prisoner.
Section 436-A of the CrPC
Section 436-A of CrPC was inserted in 2006, as it was found that there were undertrial prisoners detained in jails for periods beyond the maximum period of imprisonment provided for the alleged offence.
It may be noted that in spite of this, undertrial prisoners are still languishing in prisons for periods longer than the maximum punishment specified for their offence, as in the case of Dipak Joshi in West Bengal, who came out of prison after 42 years following the intervention of the Calcutta high court.
Apart from the stipulation that an undertrial prisoner cannot be held in prison for a period exceeding the maximum period of punishment for his offence, Section 436-A of the CrPC also has a provision that a person who has undergone detention for a period extending up to one half of the maximum period of imprisonment specified as punishment for his offence may be released if the punishment of death is not one of the punishments specified for the offence in question.
In prison parlance, this provision is referred to as ‘half ground’, and we shall use this term to refer to this clause. Unlike the maximum period of detention, the provision of ‘half ground’ was not a statutory obligation and was subject to the Court’s discretion after hearing the public prosecutor.
In this article we shall be limiting our discussion to offences under the Indian Penal Code, 1860 (IPC) while discussing the CrPC and offences under the Bharatiya Nyaya Sanhita, 2023 (BNS) while discussing the BNSS.
There are twelve offences in the IPC for which death is specified as one of the punishments, and these offences were outside the purview of the operation of 436-A for the purpose of ‘half ground’.
Section 479 of the BNSS
Section 479 of the BNSS corresponds to Section 436-A of the CrPC. Unlike in the case of most sections, where the BNSS just copies CrPC provisions, in the case of Section 479 there are a few changes and considerable additions.
There are three sub-sections to Section 479 of the BNSS. While sub-section (1) reproduces the contents of Section 436-A of the CrPC with some slight modifications and additions, sub-sections (2) and (3) are entirely new. We shall look at each of the sub-sections one by one.
Sub-section (1) of Section 479 of the BNSS
In sub-section (1) of Section 479 of the BNSS, offences punishable with death and imprisonment for life are mentioned to be excluded from the ‘half ground’. On our count, there are as many as 75 offences under the BNS that have death or imprisonment for life as one of the punishments.
While Section 436-A of the CrPC excludes only 12 offences of the IPC from the ambit of ‘half ground’, the BNSS excludes 75 offences from its ambit. If only offences punishable with death were excluded, by our count 16 offences of the BNS would have been excluded from ‘half ground’.
As per Section 6 of the BNS (which is almost a replica of Section 57 of the IPC), imprisonment for life is to be reckoned as equivalent to imprisonment for a period of twenty years for the purpose of calculating fractions of terms of punishment.
So, for the purpose of ‘half ground’, a person who has been detained for an offence for which imprisonment for life is (and death is not) one of the punishments specified under the relevant law, that person would ordinarily have been eligible to be released on ‘half ground’ after ten years in custody. However, that door is closed for such people under the BNSS.
If the BNSS takes a tougher view of offences punishable with imprisonment for life, as it considers them to be offences of a serious nature and wants to show no leniency towards persons accused of such crimes, there is hardly any room for argument. However, a look at Section 474 of the BNSS (which corresponds to Section 433 of the CrPC), which deals with the power of the government to commute sentences, would make us doubt this.
As per clause (a) of Section 474 of the BNSS, imprisonment for life can be commuted to imprisonment for a term of not less than seven years. That is to say, if you are convicted for imprisonment for life, you may stand a chance of being freed after spending seven years in prison provided you are in the good books of the government of the day; however, for the reasons set out above, if you are detained as an undertrial prisoner you are not eligible to be released even after spending ten years in prison.
So, rather than treating serious offences with iron gloves, the BNSS seems to leave it to the whims of the executive rather than to the wisdom of the judiciary. What this implies for hapless prisoners who cannot afford to engage lawyers to file bail applications on their behalf is that pleading guilty and begging for the mercy of the executive in the form of commutation to a term of seven years of imprisonment would be a more attractive option than languishing endlessly in prison as an undertrial prisoner.
Apart from the ‘half ground’, the BNSS introduces what we shall call ‘one-third ground’ for first-time offenders. A first-time offender can be released if he has undergone detention for a period extending up to one-third of the maximum punishment specified for his offence under the relevant law. The parenthetical clause explains that a first-time offender is a person “who has never been convicted for any offence in the past.”
Let us not overlook the inappropriacy in using the term ‘offender’ for a person yet to be proven guilty.
The possibility of getting bail after having spent one-third of the maximum period of punishment raised the hopes of so many prisoners who have been behind bars for years. Their hopes were further raised with the possibility of the retrospective application of Section 479 of the BNSS following the ruling of the Supreme Court in W.P. (Civil) 406/2013, In Re Inhuman Conditions in 1382 Prisons. It is not surprising that they missed the fine print that said offences that have imprisonment for life as one of the punishments are excluded from the ambit of Section 479 of the BNSS. (Ed Note: A similar conclusion was made on the Proof of Guilt blog here).
Sub-section (2): More than one offence and multiple cases
Sub-section (2) of Section 479 of the BNSS is a non-obstante clause that says a person who has more than one offence or multiple cases pending against him is not eligible to be considered to be released, neither on the basis of one-third ground, nor on the basis of half ground. Section 436-A of the CrPC had no such restriction.
“Offence” is defined in Section 2(q) of the BNSS (a replica of Section 2(n) of CrPC). It says “any act or omission made punishable by any law for the time being in force…”
As per sub-section (1) of Section 243 of the BNSS (equivalent to Section 220 of the CrPC), a series of acts connected so as to form the same transaction can lead to more offences than one being committed. Sub-section (3) of Section 243 of the BNSS states that if an offence falls within two or more separate definitions by which offences are defined under any law, the person may be charged with each such offence.
Illustration (1) pertaining to sub-section (3) of Section 243 of the BNSS says if a person wrongfully strikes another person with a cane, he may be separately charged with and convicted of offences under sub-section (2) of Section 115 (i.e. voluntarily causing hurt) and Section 131 (i.e. punishment for assault or criminal force other than on grave provocation) of the BNS.
This would mean that on a literal reading of Section 479 of the BNSS, a person who strikes another with a cane would be ineligible to be considered to be released on the basis of one-third or half ground even if the person is a ‘first time offender’.
A combined reading of sub-sections (1) and (2) of Section 479 of the BNSS gives us a peculiar situation.
The condition in sub-section (1) that a person should be a first-time offender is applicable only for one-third ground and not for half ground. Or, in other words, if you have a previous conviction, you cannot be considered to be released on the basis of one-third ground, but you can be released on the basis of half ground. Well and good.
Now consider this: as per sub-section (2) of Section 479 of the BNSS, a person who has multiple cases pending against him (or even more than one offence against him in a single case) cannot be considered either for one-third ground or for half ground.
That is to say, the BNSS takes a more considerate view of a person who has a previous conviction than of a person who is yet to be proven guilty but has more than one case pending against him in that the former is eligible to be released on half ground, but not the latter. Does this not eviscerate the presumption of innocence?
Also read: Jail, Not Bail, is Becoming the Norm and We Are Left Exulting Over the Exceptions
Sub-section 3: A silver lining
Sub-section (3) of Section 479 of the BNSS is indeed a welcome addition as it casts a duty on the jail superintendent to make an application to the court to release a person who has completed one half or one-third of the period mentioned in sub-section (1), as the case may be.
Under the previous scheme, it was left to the accused to move court. Often the persons were hardly aware of such a provision or would not have the legal support to make such an application.
Applying the law
Having gone through Section 479 of the BNSS, which deals with the maximum period that an undertrial prisoner can be detained, we shall turn to two related issues: (1) How to reduce the number of undertrial prisoners in prisons? and (2) How to ensure that an undertrial prisoner does not get incarcerated for too long a period?
Albeit related, these two questions are distinct, and different steps need to be taken to tackle them effectively.
The ABC of reducing the number of undertrial prisoners
If the number of undertrial persons in prisons is to be reduced, the three necessary steps are:
A: Avoid arrest unless necessary;
B: Bail to be granted unless circumstances warrant otherwise;
C: Conduct speedy trial.
In spite of the repeated pronouncements of the Supreme Court about the need for the police to be judicious in the use of the power to arrest, the BNSS makes only a feeble attempt to strengthen the safeguards offered by the CrPC. Sections 41, 41A, 41B, 41C and 41D of the CrPC, which deal with arrest, are reproduced and renumbered as Sections 35 to 38 of the BNSS.
The only additional protection the BNSS offers – and what perhaps justifies renaming the Act as “Nagarik Suraksha” – is the addition of sub-section (7) of Section 35, which stipulates that prior permission of an officer not below the rank of deputy superintendent of police is needed to arrest a person who is infirm or above sixty years of age, for an offence punishable with less than three years of imprisonment.
There are at least more than 100 offences in the BNS (just as was the case with the IPC) that have a punishment of imprisonment for a maximum period of less than three years. However, barring roughly half a dozen, the rest are all bailable and non-cognisable offences. Therefore, the introduction of sub-section (7) of Section 35 of the BNSS may hardly make a practical difference.
Moreover, experience shows that in order to circumvent provisions like those of Section 35(7), police may easily add a Section that provides for punishment of three years or more and may also get away with it.
Going into the issue of the grant of bail is beyond the scope of this piece. Some of the recent judgements of the Supreme Court that have upheld the right to life of the undertrial prisoner and granted bail upholding Article 21 as an effective means against the prolonged incarceration and award of surrogate punishment seem to offer a beacon of hope.
However, as noted by Abhinav Sekhri in his blog post “A curious Constitutionalism” dated July 19, 2024, it is still as though prolonged incarceration of an undertrial prisoner and the issue of the grant of bail are issues only the highest court has to concern itself with. For those who cannot afford to reach that level, there still isn’t much scope for hope.
The culture of seeking adjournments and postponements are usually cited as the main causes of delay in judicial proceedings. Section 309 of the CrPC that dealt with powers of the court to postpone or adjourn proceedings presents a curious case.
The section said that proceedings in every trial or enquiry should be conducted on a “day-to-day” basis and postponement of the commencement of trial or adjournment beyond the following day is to be resorted to only if necessary, and the reasons for the same have to be recorded.
However, postponement of the commencement of the trial for months and years and adjournments of proceedings have become the norm rather than exception. There is also a stipulation that trial in offences related to rape should be completed within a period of two months from the date of filing of the chargesheet, which would be a miracle in our trial courts.
Apart from the time limit of 60/90 days for the completion of investigation, the CrPC had no time limit specified for the framing of charges, commencement and completion of trial, or the delivery of the judgment.
The BNSS, on the other hand, sets a time limit of “sixty days from the date of first hearing on charge” for the framing of charges in Sections 251 and 263 (corresponds to Sections 228 and 242 of the CrPC, respectively) and a period of 45 days for the pronouncement of judgment after the conclusion of trial in Section 392 (which corresponds to Section 353 of the CrPC).
The efficacy of these steps, however, will have to be tested in practice as no remedies are prescribed in the eventuality of these limits not being observed.
There is hardly any reason to assume that the time limits introduced in the BNSS will not remain a dead letter, like the clause about “day-to-day” trial and the 60-day limit for the completion of trial in offences related to rape, which were part of Section 309 of the CrPC; or that Section 346 of the BNSS will ensure the framing of charges and commencement of trial without undue delay.
It has to be underlined that no time limit has been specified as to when “hearing on charge” should commence after the filing of the chargesheet.
In reality, as observed by the Bombay high court while granting bail to the accused in a POCSO case in which charges were not framed even after five years, once the chargesheet has been filed the case is often kept on the back burner and the investigation agency and the court forgets all about the accused after remanding him to judicial custody. The remand gets mechanically extended from time to time in most cases, without the accused person being produced before the court either physically or through video conferencing. This process goes on for months or even years.
In order to curb this, effective checks should be built into the system similar to the statutory bail granted to the accused in case investigation has not been completed within the stipulated time. We turn to this issue in the next section.
Also read | Bhima Koregaon Violence: Four Different Theories, but No Justice in Sight
How long is too long
As we argued right at the outset, a law that states no undertrial prisoner shall be detained for a period exceeding the maximum period of imprisonment specified as punishment for his offence is an anathema to the principle of presumption of innocence, as it only legitimises the detention of the undertrial prisoner to a period equal to that of the maximum period of imprisonment specified as punishment for that offence. It thereby provides for inflicting surrogate punishment on those who are considered to be innocent until proven guilty by procedure established by law.
The question, then, is how long a period of incarceration is too long for an undertrial prisoner?
In an ideal world, no person should be punished until proven guilty. And without mincing words let us admit that the label ‘judicial custody’ does not make detaining an undertrial person within the confines of a prisonhouse qualitatively very different from punishment.
Nevertheless, setting idealism aside, we may still arrive at a reasonable period for which an undertrial prisoner can be detained by confining ourselves to the four corners of the BNSS. In order to arrive at such a figure, we need to turn our attention to another section of the BNSS – Section 474 (which corresponds to Section 433 of the CrPC) that deals with the power of the government to commute sentences.
Unlike most other sections, Section 474 of the BNSS is a considerable improvement upon its counterpart, namely Section 433 of the CrPC. Sentences can be commuted as given below as per Section 433 of the CrPC:
- death sentence to imprisonment for life;
- imprisonment for life to imprisonment for a term not exceeding fourteen years;
- rigorous imprisonment to simple imprisonment; and
- simple imprisonment to fine.
Section 474 of the BNSS offers the following possibilities for the commutation of sentence:
- death sentence to imprisonment for life;
- imprisonment for life to imprisonment for a term not less than seven years;
- imprisonment for seven years or more to imprisonment for a term not less than three years;
- imprisonment for a term less than seven years to fine; and
- rigorous imprisonment to simple imprisonment.
As is evident from a glance at the above, the BNSS takes a much more liberal view with respect to conviction, in cases where the power to show leniency and commute sentences is vested in the hands of the executive.
If we consider the arithmetic behind the calculation involved in arriving at the number of years to which terms of sentences of imprisonment are commuted, we can see that it hovers around one-third of the sentence.
For instance, imprisonment for life is reckoned as equivalent to imprisonment for twenty years for the purpose of calculating fractions of terms of punishments (as per Section 6 of the BNS/Section 57 of the IPC). So, one-third of imprisonment for life is six years and eight months. Similarly, one-third of seven years is two years and four months.
If after conviction, the term of sentence can be commuted to its one-third at the sweet will of the executive, we propose that the same formula can be adopted in fixing the maximum period for which an undertrial prisoner can be detained.
We propose that seven years be fixed as the upper limit beyond which a person in custody as an undertrial for an offence punishable with imprisonment for life or death cannot be detained. Similarly, for offences punishable with imprisonment for seven years or more, the maximum period that a person can be detained should be three years (in line with clause (c) of Section 474 of the BNSS).
Since there is no term of imprisonment specified in the case of commutation of conviction for a term of less than seven years in Section 474 of the BNSS, we could follow the principle of one-third of the maximum punishment in such cases. For instance, the maximum period that a person can be detained for an offence punishable with three years of imprisonment can be fixed as one year.
As the Supreme Court has reiterated in some of its recent judgements, the right to life of the accused cannot be obliterated, no matter how serious the alleged offence. An accused has the right to speedy trials and if the state and the court cannot provide it to him, they have no right to detain him for a prolonged period and award surrogate punishment, but have to release him after a reasonable time.
The bogey of the possibility of tampering with evidence, influencing witnesses and flight risk cannot be grounds that trump the presumption of innocence and the right to life. And fixing the maximum period that an undertrial can be detained as a period equivalent to one-third of the punishment for the offence is only a small step to show that fundamental rights are taken seriously and are not to be trampled upon indiscriminately.
Similarly, there is no reason why the presumption of innocence should be whittled away due to the subsequent conduct of a person who has been found guilty on a previous occasion. A law that treats a person harshly on the basis of previous conviction when he is yet to be proven guilty on a subsequent occasion is just a legal garb for the prejudice that operates against a who has been found guilty once.
It may make sense to treat a person harshly on a subsequent conviction – as in the award of enhanced punishment, but not when the person is yet to be proven guilty. Therefore, the upper limit on the maximum period for which an undertrial can be detained should apply uniformly to all undertrial prisoners regardless of whether they have been convicted earlier or not.
If the clause about the maximum period an undertrial prisoner can be detained has to be implemented effectively, it has to be raised to the level of a statutory obligation on the lines of Section 187 of the BNSS (which is pari materia Section 167 of the CrPC), which leaves no discretionary power to the magistrate.
If the right to be freed when the investigation is not completed within the stipulated time is a fundamental right and not merely a statutory right as held in Vikramjit Singh v. State of Punjab (2020) 10 SCC 616, the right to be freed if the trial is not concluded within a reasonable time can be no less in stature.
The option of continuing detention after hearing the public prosecutor would virtually close the doors of bail as magistrates more often than not get persuaded by rhetoric of prosecutors, who at times act as though they were police prosecutors rather than public prosecutors.
In the current scenario, as there is no statutory limit specified for the conclusion of trial, it is left to the constitutional courts to intervene and adjudicate on the question whether the right to life of the accused person has been violated due to prolonged incarceration without trial. And this would happen only in the case of those who can afford to reach up to the constitutional courts.
As it is left unspecified, the interpretation of what a ‘reasonable time period’ is varies according to the vagaries of varied benches. It also depends often on how soon or late the file of the accused person reaches before a sympathetic bench. If in some cases it is a matter of a year or two, in some cases it is nine or ten years or even more.
Specifying the outer time limit for the conclusion of trial in the statute would not only make it uniformly applicable, but it would also make it enforceable at the level of the trial court and thereby within the means of those who cannot afford to know the doors of the constitutional courts.
Conclusion
The proposal to have parity between the term of imprisonment to which sentences of imprisonment can be commuted and the maximum period for which an undertrial prisoner can be detained – both in proportion to the sentence for the offence in question – cannot be repugnant to the spirit of justice the new laws are supposed to usher in.
The mandatory release of an undertrial prisoner after the stipulated time period is only part of the commitment to conclude the trial within that time frame, and thereby ensuring justice to both the accused person and the victim of the crime.
Keeping an undertrial person in prison endlessly and awarding surrogate punishment is justice to neither party. And the new criminal laws are all about ushering in an era of justice, aren’t they?