The advisory from the Ministry of Home Affairs (MHA), raising the issue of long detention of undertrial prisoners, highlights the recent Supreme Court of India’s order.

• The order legally mandates the state that Section 479 of Bharatiya Nagarik Suraksha Sanhita (BNSS) applies to all undertrials, irrespective of whether the case was registered before 1^st July 2024' (BNSS came into effect).

Bail Provisions under BNSS for the detainees

• Regular Cases: Undertrial to be released if detention period reaches half of maximum specified imprisonment.
• First-Time Offenders: To be released if detention reaches 1/3^rd of maximum imprisonment. Not applicable for offenses with death/life imprisonment.

Undertrials in India 

• As per National Crime Records Bureau, India’s prisons (It’s a state subject as per the 7^th Schedule of the constitution) have a 131.4% occupancy. Around 75% are undertrials (2022).
• An undertrial prisoner is in prison or judicial custody while the charges against them are tried in court.

Reasons for high number of Undertrial prisoners in India

Indiscriminate arrests by police, ignorance of legal rights, delay in trial, reluctance of the courts to grant bail, inability to provide surety.