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Wednesday, August 28, 2024

Retrospective Application of BNSS and the Supreme Court Order in 1382 Prisons

Since 2013, the Supreme Court has been seized of a public interest litigation concerning prison conditions [W.P. (Civil) 406 / 2013, In Re Inhuman Conditions in 1382 Prisons]. Over the course of a decade, it has passed a slew of orders which, it hopes, would ameliorate prison conditions. A key priority has been to try and decongest prisons, which are notoriously overpopulated.

In this vein and with this intent, on 13.08.2024, the Amicus Curiae assisting the Court had directed the judges to Section 479 of the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS]. More specifically, the first proviso therein, which stated that first-time offenders would be entitled to release from custody if they had spent up-to one-third of the maximum possible sentence. This clause, the Amicus submitted, "needs to be implemented at the earliest and it will help in addressing over-crowding in prisons."

The Court asked the Union Government to get instructions, and it heard the case next on 23.08.2024. The Union Government Counsel stated that "instructions" had been obtained from the relevant department to the effect that Section 479 of the BNSS "would apply to all undertrials in pending cases irrespective of whether the case was registered against them before 01st July 2024, the date when the newly minted legislation has come into effect.

This led the Court to observe that:

"... Having regard to the fact that the substituted provision under the BNSS is more beneficial vis-a-vis Section 436A of the Code of Criminal Procedure, 1973, wherein the period undergone by the first time offender was prescribed as up to half of the maximum period of imprisonment specified for such an offence, this Court had called upon the learned Additional Solicitor General to obtain instructions from the Department and submit a clarification regarding application of the said provision to all undertrials across the country. ... 
In that view of the matter, it is deemed appropriate to direct immediate implementation of Section 479 of the BNSS by calling upon Superintendents of Jails across the country wherever accused persons are detained as undertrials, to process their applications to the concerned Courts upon their completion of one-half/one-third, as the case may be, of the period mentioned in sub-section (1) of the said provision, for their release on bail. This step will go a long way in easing overcrowding in jails which is the primary focus of this Court in the present petition." [Emphasis supplied]

Considering how the issue of BNSS provisions applying to pending cases has been vexing many judges, lawyers, and laypersons, the Supreme Court's intervention is an important moment in the brief history of the new law, and one which should be studied carefully. In this post, I will try to explain why I think the order is arguably a misstep, and ought to be clarified by the Court going forward.

Court Fails to Explain its Reasoning
A previous post offered certain thumb rules on how to navigate the retrospective application of BNSS. The one, basic rule, when it came to applying procedural laws it argued, was that procedural laws by default are applicable retrospectively, unless they disturb vested rights of parties to their detriment. When it came to the BNSS, the legislature had decided to carve out a larger category of exceptions through Section 531 (following the formula adopted in 1973), which specified a swathe of situations where BNSS would not apply in existing cases. Nevertheless, these were exceptions, and show that the BNSS is intended to be made applicable even to pending criminal cases, albeit not at a particular stage of a case and gradually. 

It is important to keep this thumb rule in mind when we consider retrospective application of Section 479 BNSS. The Supreme Court correctly noted that this clause closely corresponded to Section 436A of the erstwhile Criminal Procedure Code of 1973. Both speak about a right of default bail conferred to persons in custody for up to one-half of the maximum possible sentence they can serve. But it appears that neither on 13.08.2024 nor on 23.08.2024 was the next, logical question raised i.e., whether Section 436A was an ordinary procedural law or had it conferred vested rights upon persons which could not be disturbed to their detriment? Surprisingly, both the orders did not refer to Section 531 BNSS either, to try and use the statutory formula for applying its provisions retrospectively. 

On 23.08.2024, as extracted above, the Court noted that Section 479 BNSS appeared to be "more beneficial" than its predecessor, Section 436A CrPC. Thus, even though it did not provide any framework to explain its thinking, one would argue that the Court was following the same approach i.e. considering whether or not the new provision is more beneficial to determine whether it can be made retrospectively applicable. What went unsaid is the Court's appreciation that 436A conferred a vested right, which I would argue is the correct appreciation of that clause. Section 436A conferred an enforceable right upon all persons in custody which began to operate from the first moment in time a person was placed in custody. It was Parliament's belated attempt to reconcile lengthy undertrial detention with the letter of Article 21 of the Constitution, two decades after the Supreme Court had paved the way through Hussainara Khatoon and other cases.  

Before we can discuss whether the Court was correct in its fleeting assessment of Section 479 BNSS being more beneficial, it is important to flag the issue which arises because of the Court's refusal to spell out its reasoning. Today, the lack of detail in the order dated 23.08.2024 can lend itself to a school of thought where all provisions of the BNSS are now sought to be tested on the anvil of their supposed beneficial nature before we can decide whether they are retrospectively applicable. That, I would argue, is incorrect, and contrary not only to Section 531 of the BNSS but also Section 6 of the General Clauses Act 1897. The general rule of applying procedural laws retrospectively has not been altered to such a great extent in the BNSS, and courts hopefully will remain cautious going forward.

Section 479 BNSS is not "More Beneficial" than 436A CrPC
Now, returning to whether Section 479 BNSS is "more beneficial" than Section 436A. Is that true? 

Section 436A CrPC provided default bail to persons held in custody under any law except for offences in which death was one of the punishments, where such persons had spent up to one-half of the maximum period of imprisonment. It also provided that a court may order continued detention for longer than this period, upon giving reasons in writing, but no court could permit the detention of persons for longer than the maximum period of imprisonment provided. Delays caused by the accused would be excluded from computing the period of detention.    

Compared to its predecessor, Section 479(1) BNSS expands the category of offences in which the default bail right will not accrue, specifying that even offences punishable with life imprisonment are excluded, and retains the earlier language about allowing courts to permit longer detentions. Section 479(1) retains the one-half formula, but ameliorates it through a proviso which says that a first-time offender can be released after serving up to one-third of the maximum possible sentence. This is what prompted the Court to view the new law as more beneficial than the old one. 

However, to close our review of Section 479 BNSS only after reading Section 479(1) would mean wishing away the fact that this provision contains two more sub-clauses, which find no mention anywhere in either the order dated 13.08.2024 or 23.08.2024. While Section 479(3) pertains to the enforcement of the right, Section 479(2) is integral to the scope of the right conferred by Section 479(1). It carves out an entirely new category of exceptions to create new situations where the right would not accrue to persons, and states that "where an investigation, inquiry or trial in more than one offence or in multiple cases are pending" against a person, that person "shall not be released on bail" by the Court.     

I would argue that Section 479(1) BNSS read with its new proviso is certainly more beneficial than what was earlier provided under Section 436A. Ordinary rules of statutory interpretation would mean that even if the Union of India did not give these so-called instructions, the beneficial aspects of Section 479(1) had to inure to the benefit of all persons in custody retrospectively who met the criteria. One wonders why the Court even bothered with that exercise which was sheer gloss.

However, at the same time, the whole of Section 479 BNSS is undoubtedly not more beneficial than its predecessor. It obviously worsens the position of persons who are in custody as on 01.07.2024 if applied retrospectively. Simple examples will do — X was in custody for more than 15 years in a case under Section 307 IPC; Y has spent 5 years in custody as of 01.07.2024 in a case where the chargesheet invoked more than one offence but the maximum imprisonment in the offences was 10 years; Z has spent 5 years in custody as of 01.07.2024 in two cases, in both of which the offences involve a highest possible sentence of 10 years. All of them were just about to file for default bail. But because of Section 479 BNSS applying retrospectively, none of them would be entitled to do so, since Section 479(1) deprives any person accused in a case of life imprisonment with the benefit, and 479(2) denies this right to any person in case involving more than one offence or against whom multiple cases are pending

Conclusion
What has the Supreme Court done with its orders in 1382 Prisons? It has not merely clarified (which is all that it needed to do) that Section 479(1) BNSS with its proviso applies to everyone in custody even prior to 01.07.2024. Instead, it has conferred its blessing on the retrospective application of the entirety of Section 479 BNSS, and in doing so has unequivocally worsened the position of all persons, in a manner entirely contrary to law. That too in a public interest litigation where nobody potentially affected by this retrospective application of the law was being heard.

There is any easy way out. Even though the terms of order dated 23.08.2024 are broadly worded, nothing apart from Section 479(1) and giving the fullest application its beneficial proviso was in the mind of the Court when it passed these orders. The bench could clarify the order to make it clear that nothing ought to be construed as conferring retrospective application to all of Section 479 BNSS. If not, then it would fall upon a different bench to clarify this issue which will surely come up to the Supreme Court sooner rather than later.

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