New Delhi: The Supreme Court of India on August 13 sought clarification from the Union government regarding the retrospective application of Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which is set to replace the Code of Criminal Procedure (CrPC). This provision, corresponding to Section 436A of the CrPC, specifies the maximum period an undertrial prisoner can be detained.
The query arose during a hearing before a bench consisting of Justices Hima Kohli and Sandeep Mehta, which was focused on a public interest litigation (PIL) concerning the overcrowding of prisons across the country.
Senior Advocate Gaurav Aggarwal, acting as Amicus Curiae, highlighted the importance of Section 479, which mandates the release of undertrial prisoners if they have served half of their potential maximum sentence. He further emphasised that first-time offenders, those with no prior convictions, should be released after serving one-third of the maximum detention period prescribed for their offence. Aggarwal argued that the implementation of this provision could significantly reduce prison overcrowding.
In response to Aggarwal’s arguments, the Court asked whether this new provision under the BNSS would be applied retroactively to current undertrial prisoners. Additional Solicitor General (ASG) Aishwarya Bhati requested time to seek instructions from the relevant government department before filing an affidavit to clarify this matter.
The Court granted the request and scheduled the next hearing for two weeks later, specifically to address the issue of the provision’s retrospective application. Justice Kohli remarked that resolving this matter could potentially alleviate the current burden on jails.
In a prior order, the Court had directed the states of Uttar Pradesh, Gujarat, Telangana, Tamil Nadu, and West Bengal to submit fresh affidavits in light of Aggarwal’s suggestions on addressing prison overcrowding. During today’s proceedings, Aggarwal informed the Court that 13 states have yet to file their compliance affidavits as previously ordered. The Court granted these states an extension until September 30, 2024, to submit their responses.
