Supreme Court: While considering this writ petition bringing forth before the Court systemic concerns regarding continued incarceration of convicted prisoners who are of advanced age (above 70 years) or are terminally ill, the Division Bench of Vikram Nath and Sandeep Mehta*, JJ., directed the Central Government, States and Union Territories to formulate and notify a comprehensive policy for early or premature release of prisoners who are of advanced age and/or are terminally ill. The Court further directed that the policy so framed, must clearly define the eligibility criteria and procedural framework for consideration of release. In particular, the policy must expressly provide a clear and uniform definition of “terminal illness” and mandate constitution of independent Medical Boards at the Divisional and State levels for objective medical assessment and certification of terminal illness or advanced medical vulnerability.
Background
National Legal Services Authority (NALSA) instituted the present writ petition highlighting that despite severely deteriorating health conditions of the elderly prisoners and manifest inadequacy of medical and caregiving facilities within prisons, such prisoners continue to remain confined, resulting in prolonged physical suffering and erosion of human dignity. It was contended that this situation is a direct infringement of fundamental rights guaranteed under Articles 14 and 21 of the Constitution.
It was submitted that as per the Prison Statistics India Report, 2022 published by the National Crime Records Bureau (NCRB), as on 31 December 2022, there were a total of 1,33,415 convicted prisoners in India. Out of this population, 27,690 convicts, constituting approximately 20.8 per cent, were aged 50 years and above. While the report did not specifically disaggregate data for convicts beyond the age of 70 years, it is evident that a non-trivial proportion of the prison population comprises elderly individuals, many of whom are likely to be afflicted with age-related morbidities and chronic medical conditions.
It was further submitted that NALSA conducted a nationwide structured and comprehensive exercise, namely, Special Campaign for Old Prisoners & Terminally Ill Prisoners between 10 December 2024 and 10 March 2025. Through this, NALSA identified a distinct class of prisoners whose continued incarceration, despite advanced age or terminal illness, warrants immediate constitutional scrutiny, as their condition renders them particularly vulnerable to neglect, suffering and deprivation of dignity within the prison system.
Hence, by way of the present writ petition, NALSA inter alia, sought directions for grant of bail and release of such identified prisoners, subject to the satisfaction of the respective trial courts, to ensure that punishment does not degenerate into cruel, inhuman or degrading treatment and that the right to live with dignity is preserved even within the prison system.
NALSA further submitted that in addition to filing the present writ petition, it has also undertaken institutional reforms including the revising of its standard operating procedure (SOP) for Under Trial Review Committees (UTRC) to systematically identify and address cases of terminally ill and elderly prisoners. The revised SOP now expressly includes both these categories within the scope of UTRC scrutiny, and mandates consideration of undertrial prisoners who are sick or infirm, including those who are terminally ill and require specialised medical treatment, as well as those who are aged 70 years and above, for humane and time-bound consideration.
Court’s Assessment: Policy framework, constitutional jurisprudence and international law vis-à-vis incarceration of elderly and terminally ill prisoners
Perusing the matter, it was emphasised that in light of the present proceedings the Court has been compelled to examine whether existing legal frameworks, remission policies and executive advisories governing incarceration are being meaningfully implemented in practice, and whether there exists a need for a principled and uniform mechanism to ensure that advanced age and terminal illness are recognised not as exceptional contingencies, but as constitutionally relevant considerations in the administration of criminal justice.
The Court further noted that the present proceedings have arisen in the backdrop of a nationwide Special Campaign for Old Prisoners and Terminally Ill Prisoners initiated by NALSA. As a result of this exercise, data collated from the State Legal Services Authorities (SLSAs) revealed that a total of 5393 prisoners were identified, including 1886 undertrial prisoners and 3507 convicts falling within these vulnerable categories. It was further noted that in order to ensure objectivity and medical consistency, the NALSA adopted the definition of “terminal illness” contained in the United Nations Office on Drugs and Crime (UNODC) Handbook on Prisoners with Special Needs (2009) which describes “terminal illness” as a situation where there is no reasonable medical possibility that the patient’s condition will not continue to degenerate and result in death.
The Court also pointed out that the issue of terminally ill prisoners is not a recent concern because as early as 2010, the Government of India issued a comprehensive advisory to all States and Union Territories laying down a policy framework for the treatment of terminally ill prisoners. The Court also highlighted that this advisory had further called for constitution of District-level and State-level Medical Boards to certify cases of terminal illness within prescribed timelines, and exhorted State Governments and Union Territory administrations to explore all available legal avenues, including general amnesty and petitions for clemency under Articles 72 and 161 of the Constitution.
However, despite the existence of the aforesaid policy framework for over a decade, the present proceedings indicated that its implementation across States and Union Territories has been uneven and largely dependent on individual initiatives rather than systemic compliance. “The persistence of large numbers of terminally ill and elderly prisoners within overcrowded prisons reflects a disconnect between normative policy commitments and ground-level execution.”
The Court reiterated its consistent jurisprudential stance that age and medical condition are relevant and often decisive considerations in matters of bail and premature release. Relying on relevant precedents, the Court stated that incarceration, when it results in avoidable physical suffering and denial of medical care, ceases to be a lawful restriction and becomes constitutionally impermissible. “(…) punishment must not become retributive suffering divorced from proportionality, humanity and purpose.”
The Court also referred to the 268th Report of Law Commission of India, which reinforced the Court’s constitutional position by advocating a liberal and humane approach to bail, particularly for prisoners of advanced age or suffering from serious illness. The Report had expressly recommended mandatory bail where the accused is suffering from a life-threatening condition and adequate medical care is unavailable in custody, recognising that continued detention in such circumstances only compounds suffering and serves no legitimate penological purpose.
The Court also deemed it fit to take note of the international legal standards which support the stance that continued incarceration of elderly and terminally ill prisoners is incompatible with principles of human dignity. Instruments, namely the UNODC Handbook on Prisoners with Special Needs, the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), and the Council of Europe Parliamentary Assembly (PACE) Report, uniformly recognise that prison systems are structurally ill-equipped to provide adequate palliative care, and that compassionate or early release mechanisms are essential to safeguard the inherent dignity of such prisoners.
The Court grimly pointed out that, “The present case thus calls for a systemic recalibration of criminal justice system, wherein vulnerability is not treated as an afterthought, but as a constitutionally significant determinant for humane treatment of prisoners.”
Court’s Assessment of the Constitutional distribution of powers vis-à-vis prisons and persons detained therein
The Court stated that Schedule 7 List II of the Constitution, the subject of “prisons and persons detained therein” falls exclusively within the legislative domain of the States, and the primary responsibility for framing, adopting and effectively implementing laws and policies in respect of prison rests with the respective State Governments and Union Territory administrations. “The obligation to operationalise reformative and humane standards, therefore, lies squarely with these authorities, which alone possess the legislative competence and administrative control necessary to translate constitutional mandates into institutional practice.”
It was reiterated that under the doctrine of separation of powers, the Court cannot assume the role of a legislature or embark upon law-making in areas expressly reserved for the elected branches of Government. However, the Court also pointed out that constitutional restraint cannot be equated with constitutional abdication. Where legislative or executive inaction results in persistent or systemic violations of fundamental rights, the Court cannot remain a passive spectator. “This Court is duty-bound to issue appropriate directions to ensure that existing constitutional and statutory frameworks are effectively implemented and that the guarantees under Article 21 of the Constitution of India do not remain merely formal or illusory.”
Directions issued
Therefore, in of the powers under Articles 32 and 142 and in furtherance of the Constitutional mandate under Article 21 of the Constitution, the Court issued the following directions:
-
Directions were issued related to formulation of comprehensive policy for early or premature release of elderly and terminally ill prisoners. It was directed that such policy shall be framed in consultation with the respective SLSAs to ensure institutional coordination and effective identification of eligible prisoners. This comprehensive policy is to be formulated within 3 months from the date of the judgment.
-
The Court directed the aforesaid policy must clearly define “terminal illness” and for this purpose, States and Union Territories may adopt, with such modifications as deemed appropriate, the definition contained in the UNODC Handbook on Prisoners with Special Needs (2009).
-
The policy shall mandate constitution of independent Medical Boards at the Divisional and State levels for objective medical assessment and certification of terminal illness or advanced medical vulnerability. Such Boards shall comprise suitably qualified medical professionals and shall conduct periodic reviews of identified cases.
-
The policy shall prescribe a time-bound, transparent and accessible procedure for submission, examination and disposal of applications for early or compassionate release. Procedural delays which result in prisoners spending their final months or years under incarceration shall be avoided, and all decisions shall be reasoned and subject to judicial review.
-
The policy shall be integrated with the functioning of UTRCs, and such committees shall be mandatorily required to periodically review cases of prisoners who are terminally ill, of advanced age, or suffering from any other condition leading to physical incapacitation, as the case may be, and to recommend appropriate legal action including bail, parole, remission or release.
-
States and Union Territories may adopt the framework proposed by NALSA, as annexed to the present judgment as Schedule A, or modify the same to suit local administrative and legal requirements, provided that the core principles of dignity, proportionality and humane treatment are preserved.
-
The policy shall also provide for coordination with community health services, social welfare departments and legal aid institutions to ensure continuity of medical care and social support for prisoners released under compassionate grounds.
-
The entire process for consideration of applications for early, premature or compassionate release shall be mandatorily integrated with the National e-Prisons Portal. Every application shall be digitally registered and assigned a unique tracking number, and the portal shall record each stage of processing including submission of the application, medical evaluation, reports of the prison authorities, recommendations of the Medical Board and the UTRC, decisions of the competent authority, and the reasons therefor. The e-Prisons portal shall facilitate time-bound processing through automated alerts and monitoring of statutory or prescribed timelines, ensure transparency and accountability in decision-making, generate periodic compliance reports, and enable effective supervisory oversight by the State Government, the SLSA, and other competent authorities, while maintaining appropriate safeguards for the confidentiality and privacy of prisoners’ medical and personal information.
-
The Union of India shall, through the Ministry of Law and Justice, Ministry of Home Affairs and the National Informatics Centre (NIC) under the Ministry of Electronics and Information Technology (MeitY), provide all necessary technical support, digital infrastructure, software development, maintenance and capacity-building assistance to the States and Union Territories to facilitate effective compliance with the directions issued by this Court. The NIC shall ensure that the e-Prisons portal is suitably configured, upgraded and maintained to enable seamless implementation of the framework directed herein, including digital processing, monitoring and tracking of applications for early, premature or compassionate release, and shall extend all necessary assistance to the States and Union Territories to ensure uniform, timely and effective implementation of these directions.
-
Union of India through the Ministry of Law and Justice, and all the States and Union Territories shall file a compliance affidavits before the Court within 6 months, indicating the status of compliance with the directions issued hereinabove as well as the status of the formulation and implementation of the aforesaid policy, including data regarding the number of prisoners identified, released, and those presently under consideration.
-
Copy of this judgment shall be forthwith transmitted by the Registry of the Court to the Secretary, Ministry of Law and Justice, Government of India; Secretary, Ministry of Home Affairs, Government of India; the Secretary, Ministry of Electronics and Information Technology, Government of India; and the Chief Secretaries of all the States and Union Territories, for ensuring due compliance with the directions issued hereinabove.
-
The Court directed the Registry to implead the states of Arunachal Pradesh, Assam, Goa, Gujarat, Karnataka, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim and Uttarakhand, as well as the Union Territories of Andaman and Nicobar Islands, Chandigarh, Dadra and Nagar Haveli and Daman and Diu, Jammu and Kashmir, Ladakh, Lakshadweep and Puducherry, as party-respondents in the present proceedings.
SCHEDULE A
I. For Terminally Ill Prisoners
|
Step 1 |
Initial screening and identification by Prison Medical Officer. |
|
Step 2 |
Review by UTRC in accordance with the “UTRC Framework”. |
|
Step 3 |
Eligible under trial prisoners/convicts shall be referred to the District Medical Board, which shall determine whether the prisoner is “terminally ill”. Upon such determination, a certificate of terminal illness may be issued. |
|
Step 4 |
The District Medical Board shall forward the names of recommended under trial prisoners/convicts to the State Government for consideration of release. |
|
Step 5 |
In cases where the undertrial prisoners/convicts are not recommended by the State Government for release, the District Legal Services Authority (DLSA) concerned may move appropriate applications, if not already filed. |
II. For Old Aged prisoners
|
Step 1 |
Review by UTRC in accordance with the “UTRC Framework”. |
|
Step 2 |
UTRC, through the Prison Superintendent, shall forward the names of recommended undertrial prisoners/convicts to the State Government for consideration of release, to be decided on a case-to-case basis. |
|
Step 3 |
In cases where the undertrial prisoners/convicts are not recommended by the State Government for release, the DLSA concerned may move appropriate applications, if not already filed. |
[National Legal Services Authority v. Union of India, 2026 SCC OnLine SC 1341, decided on 16-7-2026]
*Judgment by Justice Sandeep Mehta
Advocates who appeared in this case:
For Petitioner(s): Ms. Rashmi Nandakumar, AOR Ms. Yashmita Pandey, Adv.
For Respondent(s): Mr. Guntur Pramod Kumar, AOR Ms. Prerna Singh, Adv. Mr. Dhruv Yadav, Adv. Mr. Keshav Singh, Adv. Ms. Ankita Sharma, AOR Mr. Mukesh Kumar Maroria, AOR Mr. Abhinav Bajaj, A.A.G. Mr. Samar Vijay Singh, AOR Ms. Sabarni Som, Adv. Mr. Saksham Ojha, Adv. Ms. Geetashi Chandna, Adv. Mr. Aman Dev Sharma, Adv. Mr. Keshav Mittal, Adv. Mr. Pushkar Sharma, Adv. Mr. Vaibhav Srivastava, A.A.G. Ms. Sugandha Anand, AOR Mr. Harshad V. Hameed, AOR Mr. Varad Kilor, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Shrirang B. Varma, Adv. Mr. Karan Sharma, AOR Mr. Padmesh Mishra, A.A.G. Mr. S.. Udaya Kumar Sagar, AOR Mr. Sabarish Subramanian, AOR Ms. Devina Sehgal, AOR Mr. Yatharth Kansal, Adv. Mr. Nishant Awana, AOR MR. B. Karunakaran, AOR
Buy Constitution of India HERE
