[This article is authored by Mihir Teja Kalle, a Student at National Law Institute University]

Introduction

The presumption of innocence of an accused is one of the fundamental rights vested with an accused in Indian criminal jurisprudence. The legislature has only deviated from the same in cases of “extraordinary” offences that may require more stringent norms and often delineate stricter bail conditions for the same. Yet, Section 479(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) seems to dilute this right in an arbitrary and irrational manner. It seeks to deny the benefit of default bail granted to undertrials under section (“u/s”) 479(1) of BNSS, where there is more than one case filed against that person.

This article shall seek to delve into the intricacies of Section 479(2) of the BNSS in light of recent judgements that have conferred the benefit of Section 479 retrospectively. Moreover, it shall seek to evaluate the constitutionality of the section and its compatibility with natural laws.

Delineating the Contours of Section 479 of BNSS and its Retrospective Application

Section 479(1) of the BNSS serves as a replacement to Section 436A of the Code of Criminal Procedure, 1973 which sought to ensure the release of an undertrial prisoner wherein they have served up to one-half of the maximum period of imprisonment. Moreover, Section 479(1) relaxed the time period served to one-third for first-time offenders with no conviction. The Ministry of Home Affairs has emphasized on the importance of Section 479(1) in curbing overcrowding in prisons along with ensuring that undertrials do not undergo unnecessary long detention. Additionally, Section 479(3) places the onus on the Superintendent of the Prison to ensure that an undertrial can avail bail/bond if they fit the criteria for statutory bail.

Due to the beneficial nature of Section 479(1), the Apex Court in the case of In Re-Inhuman Conditions in 1382 Prisons, permitted the beneficial provisions of Section 479 to apply retrospectively as it was to the benefit of the undertrials. Although, the Court failed to delineate the ambit of its retrospective application and whether the bar set u/s 479(2) would still apply. But, in the case of K. Ramakrishna, the Karnataka High Court laid down that any benefit of the first proviso of Section 479 would be subject to Section 479(2) and that all provisions have to be read conjointly. Moreover, the Court reaffirmed the nature of Section 479(2) as a non-obstante clause.

Hence, a harmonious reading of the aforementioned judgments leads to the conclusion that while Section 479(1) may have retrospective application, such application is constrained by the limitations imposed under Section 479(2).

An Irrational and Arbitrary Classification

i) Lack of Reasonable Classification

The Judiciary has time and again re-emphasized that legislative acts must be compatible with the fundamental rights enshrined in the Constitution of India. In the case of State of West Bengal v. Anwar Ali Sarkar, the Supreme Court laid down the test of reasonable classification through two prongs: firstly, that the action possesses an intelligible differentia; and secondly, that the said intelligible differentia possesses a rational nexus to the object of the law. In Navtej Singh Johan v. Union of India, the same Court expanded the purview of the reasonable classification test to include an analysis of the effect of the law alongside with the objective.

Section 479(1) seeks to confer the benefit of default bail upon undertrials who meet certain prescribed conditions. The intent behind this provision is to curb overcrowding in prisons and ensure that undertrials are not subjected to prolonged incarceration. This legislative purpose was reaffirmed in Bhim Singh v. Union of India, wherein the Court directed that all undertrials who had completed half the period of the maximum sentence prescribed for their offence must be identified and released on bail. Moreover, the Minister of State for Home Affairs has stated  that undertrials constitute a vast majority of the prison population with over 1,34,799 undertrials languishing in jail for more than a year.

While the erstwhile CrPC did not impose any such limitations on default bail and vested the discretion of continued detention with the courts, the BNSS, under Section 479(2), strips this benefit from undertrials who are similarly situated. The purported intelligible differentia here is that these undertrials have multiple cases pending against them and are therefore placed in a separate category. However, in Mohd. Wajid v. State of U.P., the Court had previously held that criminal antecedents alone cannot be the sole ground for denying bail, especially given the possibility of frivolous and vexatious proceedings being initiated. In this context, the classification under Section 479(2) is suspect as merely having several cases filed against a person cannot be sufficient grounds to deny them the statutory benefit of default bail.

Neither does the proviso fulfil the second prong as in arguendo, even if the intelligible differentia is found to be reasonable, it does not have any rational nexus to the goal of the section which is to ensure decongestion of prisons and provide bail to those who are incarcerated for long periods of time. On the contrary, a holistic reading suggests that Section 479(2) defeats the very object of the provision. It neither advances the stated legislative goal nor introduces any alternate objective. In fact, the effect of the proviso is to place undertrials, who may be victims of false or vindictive complaints, in an even more precarious position.

ii) Arbitrary Legislation

In a catena of celebrated judgements including Maneka Gandhi, D.s Nakara and Ajay Hasia, the Apex Court has laid down that arbitrary legislative action can be struck down if it’s found to be irrational and arbitrary. The legislation must be based on valid relevant principles of law that apply to those similarly situate and hence cannot be guided by superfluous considerations. Viewing through this jurisprudential lens, Section 479(2)’s wholesale exclusion is based on the mere premise of a number of pending cases. It fails to analyse the nature of the case and the possibility of overlapping cases. Hence, it fails to provide a rational justification.

Section 479(2) seems to irrationally place those undertrials who have multiple cases filed against them on a different footing than there similarly situated undertrials who may avail the benefit of the first proviso. While the goal herein may be to ensure that public peace is maintained, it cannot be achieved through an irrational classification. In the case of Lakshmanan v. State of T.N, the Apex Court affirmed that even if an Act seeks to further the goal of ensuring public good and serves a public purpose, it must still be tested against the anvil of being irrational and arbitrary. It attempted to ensure that no legislation serving a public purpose may shield itself from scrutiny, especially where it placed overbroad and unequal restrictions. Applying that standard, Section 479(2)’s sweeping exclusion of certain undertrials, collapses under constitutional scrutiny for being both over-inclusive and under-inclusive.

Furthermore, In the case of Ayub Khan, the Apex Court noted that where the accused makes out a case wherein there has been long incarceration, the mere presence of antecedents may not be relevant. In the case of Section 479(1), the burden does not lie on the accused to demonstrate a strong case against prolonged incarceration. The statute itself creates a right to be released once the specified conditions are satisfied, thereby conferring default or statutory bail. Hence, in such a case, the legislature should never have considered the conception of the second proviso as it undermines the very purpose of statutory bail, which is designed to prevent indefinite pre-trial detention irrespective of accusations that remain unproven.

Section 479(2) also does not fall in line with a cardinal principle of Indian jurisprudence which is that every accused is presumed to be innocent unless the prosecution proves its case beyond reasonable doubt. The judiciary has often taken a cautious approach to legislative acts that breach this principle, such as in the case of Kartar Singh v. State of Punjab, wherein Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, which placed the burden of proof on the defendant in a bail application was upheld only because it dealt with terrorist activities, thereby underlining the need to infringe upon such principles of law only during exceptional circumstances. Section 479(2) on the other hand, places a blanket bar on any undertrial merely for having several cases against them, this is problematic since it creates an illusion that the accused must be guilty in at least once case and is therefore undeserving of bail.

Conclusion

In conclusion, Section 479(2) of the BNSS places an unjustified restriction on the grant of statutory bail and departs from both constitutional safeguards and the principles of criminal jurisprudence. By classifying undertrials solely on the basis of multiple pending cases, it fails to advance the objective of reducing prison overcrowding or serve any other legitimate aim. Instead, it prolongs incarceration, even in cases of false or frivolous complaints, and undermines the presumption of innocence. Supreme Court jurisprudence has consistently held that curtailment of such protections must be justified by exceptional circumstances and a clear connection to the legislative goal. Section 479(2) lacks both and represents an instance of legislative overreach. It requires urgent review to ensure that statutory bail remains an effective safeguard against arbitrary and excessive pre-trial detention.