"The last person matters most": SC on releasing eligible inmates awaiting trial

According to the court, a crucial first step in resolving the harsh conditions and jail overpopulation is making sure that all eligible undertrial inmates are released.

Justice must be extended to the "last person" who is still unheard and invisible in the system, the Supreme Court emphasized on Tuesday, underscoring the need of putting laws for the release of first-time offenders from jails into effect.

Ensuring the release of all eligible undertrial inmates is a crucial step in tackling the harsh circumstances and overcrowding in jails, according to a bench of justices Hrishikesh Roy and SVN Bhatti.

"That final individual, whose voice is inaudible, is standing against the wall. We're looking at that individual," the bench noted. "We are looking at that one individual who hasn't benefited from the law," it continued. If one individual is still behind bars despite having the right to be released, it won't make any difference if 500 or 5,000 others have been freed.

Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which permits first-time offenders without past convictions to be released after serving one-third of their maximum sentence, was being implemented when the court made these comments. Compared to the similar Section 436A of the Code of Criminal Procedure (CrPC), which restricted such relief to undertrials who had served half of their maximum sentence, this BNSS provision is more wide.

The BNSS provision covers offenses that are not punishable by death or life in prison. Notably, the SC had earlier mandated that cases filed before to the BNSS's implementation on July 1, 2024, should be covered retroactively by this lenient provision.

The bench has been keeping an eye on whether its August 23 order, which instructed jail officials nationwide to find qualified undertrials and handle their Section 479 release applications, is being followed. In his capacity as amicus curiae, senior counsel Gaurav Agarwal has been crucial in compiling statistics by state and pointing out implementation inadequacies.

The bench stressed that eligible inmates shouldn't be kept behind bars because of systematic delays and voiced worry over the sluggish identification and action processes.

The state of Uttar Pradesh was also reprimanded for failing to provide a compliance report in this case. The court referred to it as a "lame excuse," but the state's additional advocate general, Garima Prashad, blamed it on a miscommunication on Uttar Pradesh's inclusion in the list of states that were subject to review.

It's a weak justification—you are the biggest state and have 75 jails. Some states only have one or two prisons. Additionally, you must have the most under trial. Why do you not empty your overloaded prisons? After all, this legislation is good," the bench informed Prashad.

Despite the high volume of bail applications and pending trials, Prashad noted that statistics would indicate that the frequency of such requests is not that high. "It is not about whether 500 or 5,000 other persons have received the benefit," the bench shot back. We are examining that one individual who is entitled but has not received the benefit.

The court also supported the adoption of a standard operating procedure (SOP) for the identification and release of undertrial defendants by all states and UTs. "The state legal services authority and the state authorities should meet and decide on a plan of action. All parties involved must cooperate on these issues, which are all related to individual liberty," it continued.

The extreme congestion in Indian prisons is the reason the court's oversight is important. Over 75% of inmates are undertrials, according to the National Crime Records Bureau's (NCRB) Prison Statistics India 2022 study. As of December 31, 2022, almost 4.34 lakh of the 5.73 lakh inmates were awaiting trial.

"An undertrial who is entitled to be released under Section 479 of the BNSS deserves effective consideration under the beneficial provision of the law," the bench had said during an earlier hearing on October 22. A person who is incarcerated must be thinking about getting out of the prison walls all the time.

The judge on the day ordered undertrial review committees (UTRCs) in each district to play a proactive role in finding eligible inmates, lamenting that the identification procedure has remained "deficient" in spite of explicit rules. Additionally, it called on the member secretaries of the state and district legal services authority to organize paralegal volunteers and panel advocates in order to regularly update pertinent data on inmates awaiting trial.

In this case, the court must strike a balance between two seemingly incompatible circumstances. It was observed that while Indian jails are overflowing, thousands of prisoners are wailing for their freedom.