Recently, the Supreme Court instructed Jail Superintendents to take proactive measures in identifying women prisoners who could be eligible for release under Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

“Although the provisions of Section 479 of the BNSS are gender neutral, it is also necessary for this Court to say that special efforts should be made to identify women prisoners who are entitled to release under the beneficial provision. The concerned Jail Superintendents where the women prisoners are lodged should therefore pay personal attention to the female prisoners, who might have become eligible for the release benefits, under Section 479 of the BNSS”, the Court said.

A bench comprising Justice Hrishikesh Roy and Justice SVN Bhatti also directed the authorities to review and update jail records, recognizing that there may be instances where an individual initially accused of a heinous crime later faces charges for a lesser offense, potentially qualifying them for release.

“The concerned authorities must also take care to avoid confusion for an undertrial, who might initially be charged with a heinous crime entailing life imprisonment or the death penalty but against whom charges have been framed subsequently, for a lesser offence. This is being flagged as there could be cases of prisoners whose jail records may not have been updated with charges being framed for lesser crimes”, the Court emphasised.

The Court was hearing a writ petition related to overcrowding in prisons across India. On August 23, 2024, it ruled that the beneficial provision of Section 479 of the BNSS would apply retrospectively to undertrials nationwide, including those in cases registered before July 1, 2024. Section 479 seeks to address the prolonged detention of undertrial prisoners, with certain exceptions for individuals charged with heinous crimes.

The Court observed that 27 states and union territories had submitted responses regarding the implementation of Section 479. However, Uttar Pradesh, Bihar, Tripura, and Goa failed to comply. The Court criticized these states for disregarding the benefits of Section 479, which is designed to ease the burden on undertrials.

“Despite the fact that the last order passed by this Court (on 22.10.2024) was communicated to the Chief Secretaries of all the State and Union Territories, the non-filing of response by the concerned States shows that perhaps the concerned States/UTs are lax in ensuring that the benefits of Section 479 of the BNSS are availed by the deserving category of undertrials”, the Court observed.

Section 479 of the BNSS mandates the release of undertrials who have served half of the maximum sentence prescribed for their alleged offense, with exceptions for those charged with offenses punishable by life imprisonment or the death penalty. First-time offenders with no prior convictions are eligible for release after serving one-third of the maximum sentence. Jail Superintendents are required to assess the eligibility of undertrials and submit applications for their release to the courts.

On Tuesday, the Court reviewed the progress of implementing Section 479 and examined a note prepared by Amicus Curiae Gaurav Agrawal and NALSA counsel Rashmi Nandakumar. The Court highlighted three key issues based on the note: the need for precise identification of eligible undertrials, the timely referral of cases to the courts, and the importance of following up to secure release orders.

The bench directed states and union territories to submit follow-up reports in a standardized format. The reports must include the name of the prison, the prisoner's name (and their father’s or husband’s name), crime number and sections, date of jail admission, maximum sentence, total time spent in prison (including transfers), date the application was sent to the Court, dates of referral from the prison to the District Legal Services Authority (DLSA) and from DLSA to the Court, date of release, reasons for any denial of bail, and any relevant remarks.

The Court urged all stakeholders to ensure that the benefits of Section 479 are extended to all eligible prisoners. It directed the non-compliant states and union territories to submit their responses within two weeks and scheduled the next hearing for December 10, 2024.

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

Case Title – In Re-Inhuman Conditions In 1382 Prisons