Undertrial prisoners: rights in jail and release under Sec 479 BNSS

Most people in Indian jails have not been convicted of anything. They are undertrial prisoners, held in custody while their case is investigated or tried. Many are poor, and some have waited years for a trial to begin. An undertrial is presumed innocent, so the law gives them rights inside jail, and a route out when detention stretches on too long.

Rights that stay with you in jail

Being in custody does not end your fundamental rights. Courts have held that undertrials keep their right to life and dignity under Art 21. In practice this means:

• A free lawyer. Art 39A directs the State to provide free legal aid, and under the Legal Services Authorities Act, 1987, every person in custody qualifies regardless of income (Hussainara Khatoon, 1979). Every prison has a legal aid clinic run by the District Legal Services Authority (DLSA), with paralegal volunteers who can draft applications.
• Production in court. You must be produced on every remand date, in person or by video link, and the court must extend custody each time. Detention without a current order is illegal.
• Bail at any stage. You can apply for regular bail, default bail if the chargesheet is late, and release under Sec 479 BNSS.
• Humane treatment. Food, medical care, letters and visits from family and your lawyer, and protection from violence, under your state's prison manual. Undertrials are generally kept apart from convicts.
• Complaints. You can write to the Superintendent, the visiting judge, the DLSA and the State Human Rights Commission.

Release after long detention: Section 479 BNSS

Sec 479 BNSS replaced Sec 436A of the earlier CrPC on 1 July 2024 and is stronger than the old rule. It says:

• Half the maximum. If you have spent one-half of the maximum sentence for the offence in custody during investigation, inquiry or trial, the court shall release you on bail.
• One-third for first-time offenders. If you have never been convicted of any offence, you are to be released on bond once you have spent one-third of the maximum sentence in custody.
• Never beyond the maximum. No undertrial can be kept in custody longer than the maximum sentence for the offence, in any case.
• The jail must act. Under Sec 479(3) the Superintendent of the jail must apply in writing to the court as soon as a prisoner completes the half or one-third period.

There are limits. The section does not apply to offences for which death or life imprisonment is a prescribed punishment. Under Sec 479(2) it does not apply where investigation, inquiry or trial is pending against you in more than one offence or in multiple cases. The court may, after hearing the public prosecutor and for reasons recorded in writing, continue detention beyond the half mark or ask for bail bonds instead of a bond. Delay caused by you is not counted.

In August 2024, in In Re: Inhuman Conditions in 1382 Prisons, the Supreme Court held that the first-time-offender benefit applies to undertrials whose cases were registered before 1 July 2024 as well, and directed jail superintendents across the country to identify eligible prisoners and move the courts.

Who is supposed to check

Each district has an Undertrial Review Committee, chaired by the District Judge, with the District Magistrate, Superintendent of Police, jail superintendent and DLSA secretary. It meets periodically to identify prisoners eligible under Sec 479, those granted bail but unable to furnish sureties, and others who should not be in jail. It grew out of Bhim Singh v. Union of India (2014), where the Supreme Court directed judges to sit in jails to identify such prisoners. Families can write to the DLSA secretary asking that a case be placed before the committee.

Step by step: what families can do

1. Collect the basics: FIR number, police station, sections charged, date of arrest and first remand, the court where the case is pending, and the jail and ward.
2. Work out the marks. Find the maximum sentence for the gravest offence charged. Half of that is the Sec 479 release point; one-third if the prisoner has no earlier conviction. Count from the date of first custody.
3. Get a lawyer the same week. Call 15100, visit the DLSA office in the district court, or ask the jail legal aid clinic to assign a lawyer.
4. If the mark has passed, ask the jail superintendent in writing whether he has applied under Sec 479(3), and have the lawyer file the prisoner's own application in the trial court the same day.
5. If bail is granted but the prisoner cannot pay, tell the court. It can reduce the amount or accept a personal bond. Under the Supreme Court's 2023 directions in In Re: Policy Strategy for Grant of Bail, the jail must inform the DLSA if a prisoner is not released within seven days of a bail order. Ask the DLSA about government schemes that help poor prisoners pay bail amounts.
6. Keep pressing on the trial. Ask the lawyer to object to adjournments and, if the case has stalled for years, to seek bail on the ground of delay.