In a landmark ruling on Friday, August 23, the Supreme Court of India announced that the relaxed bail provisions for first-time offenders under the Bharatiya Nagarik Suraksha Sanhita (BNSS) will have a retrospective effect. This decision means that even offences committed before the BNSS came into force on July 1, 2024, will be subject to these provisions, offering potential relief to numerous undertrial prisoners across the country.

Under this ruling, first-time offenders detained in ongoing criminal cases can now seek bail under the BNSS provisions, which significantly reduces the period of detention required before release. This could have far-reaching implications for India’s prison system, which is currently grappling with severe overcrowding.

According to the 2022 report from the National Crime Records Bureau (NCRB), India’s 1,330 prisons are operating at 131.4 per cent capacity, with approximately 75 per cent of the 573,200 inmates being undertrials. The Supreme Court’s decision could bring much-needed relief to these overcrowded prisons by expediting the release of eligible undertrial prisoners.

Both the BNSS and the now-replaced Criminal Procedure Code (CrPC) of 1973 contain provisions limiting the maximum period for which an undertrial prisoner can be detained. Under these laws, if a trial or investigation is pending, an undertrial prisoner must be released on bail if they have already served half the maximum sentence prescribed for the offence, unless the offence is punishable by death or life imprisonment.

The BNSS introduces a crucial change for first-time offenders—those who have never been convicted before—reducing their detention period before they can be released on bail. Specifically, if such an individual has served one-third of the maximum sentence for their alleged offence, they "shall be released on bond by the Court."

This ruling stems from the ongoing case concerning inhumane conditions in India’s prisons, which the Supreme Court has been monitoring since 2013. The case was initiated following a Public Interest Litigation (PIL) that highlighted issues such as prison overcrowding, unnatural deaths, and a shortage of trained staff.

On August 13, 2024, Senior Advocate Gaurav Agrawal, appointed as amicus curiae, urged the Court to implement Section 479 of the BNSS promptly to address overcrowding. Additional Solicitor General Aishwarya Bhati confirmed the Union government's support for this move, stating that the provisions should apply to any undertrial who has completed one-third of their imprisonment.

The bench, comprising Justices Hima Kohli and Sandeep Mehta, directed jail superintendents to process applications for all eligible undertrial prisoners within three months.