‘Last person matters most’: SC on freeing eligible undertrial prisoners

The Supreme Court on Tuesday underscored the urgency of implementing provisions for the release of first-time offenders from prisons, emphasising that justice must extend to the “last person” standing unheard and unseen in the system.
A bench of justices Hrishikesh Roy and SVN Bhatti said that ensuring the release of all eligible undertrial prisoners is a critical step toward addressing the inhuman conditions and overcrowding in jails.
“We are looking at that last person standing against the wall whose voice cannot be heard. It is that person we are looking at,” observed the bench. It added, “We are looking at that solitary person who hasn’t gotten the benefit of the law. It wouldn’t matter much if 500 or 5,000 others have been released if that one person is still incarcerated despite his entitlement to be released.”
The court’s remarks came while taking stock of the implementation of Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which allows first-time offenders with no prior convictions to be released after serving one-third of their maximum punishment. This provision, introduced in the BNSS, is more expansive than the corresponding Section 436A of the Code of Criminal Procedure (CrPC), which limited such relief to undertrials who had served one-half of their maximum sentence.
The provision under BNSS applies to offences not punishable by death or life imprisonment. Notably, the SC had previously ordered that this liberal provision should apply retrospectively to cases registered before the BNSS came into effect on July 1, 2024.
The bench has been monitoring compliance with its August 23 order, which directed jail authorities across the country to identify eligible undertrials and process their applications for release under Section 479. Senior advocate Gaurav Agarwal, acting as amicus curiae, has been instrumental in collating state-wise data and highlighting gaps in implementation.
The bench expressed concern over the slow pace of identification and action, stressing that eligible prisoners should not remain behind bars due to systemic delays.
It also pulled up the state of Uttar Pradesh for not submitting a compliance report in the matter. While the state’s additional advocate general Garima Prashad blamed it on a misunderstanding about the inclusion of Uttar Pradesh in the list of states which were up for review, the court called it a “lame excuse”.
“It is a lame excuse…you have 75 jails and happen to be the largest state. There are other states with one or two jails. You must have the highest number of under trials too. Why don’t you clear your overcrowded jails. This is a beneficial legislation after all,” the bench told Prashad.
Prashad pointed out that despite the large numbers of bail applications and under trials, statistics would show that the pendency of such requests is not that much. But the bench retorted: “It is not about whether 500 or 5,000 other persons have got the benefit. We are looking at that solitary person who has not gotten the benefit despite his entitlement.”
The court also favoured a standard operating procedure (SOP) to be adopted by all states and UTs regarding the process of identification and release of under trials. “The state authorities should sit with the state legal services authority and chalk out a course of action. These are all matters of personal liberty and all stakeholders must work together,” it added.
The significance of the court’s monitoring stems from the severe overcrowding in Indian prisons. According to the Prison Statistics India 2022 report by the National Crime Records Bureau (NCRB), undertrials account for over 75% of the prison population. Out of 5.73 lakh prisoners as of December 31, 2022, more than 4.34 lakh were undertrials.
During an earlier hearing on October 22, the bench had observed: “An undertrial, who is entitled to be released under Section 479 of the BNSS, deserves effective consideration under the beneficial provision of the law. An incarcerated person must be thinking constantly of the day when he can be out of the jail walls.”
Lamenting that the process of identification has remained “deficient” despite clear guidelines, the bench had on the day directed undertrial review committees (UTRCs) in each district to take a proactive role in identifying eligible prisoners. It also urged the member secretaries of the district and state legal services authorities to mobilise panel advocates and paralegal volunteers to update relevant information on undertrial prisoners continuously.
“The court, in this matter, is required to balance two apparently conflicting situations. While the Indian jails are bursting at the seams and at the same time lakhs of jail inmates are crying hoarse for freedom,” it had noted.