Published on 23rd June 2025
Authored By: Anura Lepcha
University of Engineering and Management, Kolkata
Introduction
Bail is a cornerstone of criminal jurisprudence, deeply rooted in the presumption of innocence and the fundamental right to personal liberty. In a country like India, where jails are overcrowded and undertrial prisoners constitute a significant proportion of the prison population, bail reforms are not just legal imperatives but also they are human rights necessities. The enactment of the Bharatiya Nyaya Sanhita (BNS), 2023 and the corresponding Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaces the Criminal Procedure Code (CrPC), has sparked fresh discourse on bail jurisprudence. This article explores the evolution of bail in India, analyses key judicial interpretations, and assesses how the BNS era might shape a more just and equitable bail system.
The principle that “bail is the rule and jail is the exception” continues to face systemic and operational challenges, from arbitrary arrests to delayed adjudications. Amidst this landscape, the BNS and BNSS offer an opportunity to reimagine bail as a tool for justice rather than coercion. This article explores the historical evolution of bail in India, its theoretical foundations, judicial interpretations, recent legislative reforms under the BNS/BNSS regime, and the road ahead for a more equitable bail system.
Theoretical Foundations of Bail Jurisprudence
The jurisprudence of bail is inherently tied to natural justice, the presumption of innocence, and the right to personal liberty under Article 21 of the Constitution of India. It operates at the intersection of two competing interests: the individual’s liberty and the State’s interest in securing justice.
Legal philosophers like Jeremy Bentham emphasized utilitarian principles, arguing that pre-trial detention should be the least restrictive method to ensure attendance in court. Roscoe Pound, too, identified the balance between social order and individual liberty as a defining challenge of modern legal systems. In this framework, bail acts as a bridge, securing the accused’s appearance without infringing unnecessarily upon their freedom.
The UN’s International Covenant on Civil and Political Rights (ICCPR) and Universal Declaration of Human Rights (UDHR) both recognize the right to be presumed innocent and to be released pending trial, ensuring that detention is an exception rather than the norm.
Historical Evolution of Bail in India
India’s bail jurisprudence is deeply entrenched in its colonial past. The CrPC of 1973 codified the process for granting bail and distinguished between bailable and non-bailable offences. However, even under the CrPC, the courts have time and again emphasized that ‘bail is the rule and jail is the exception’, most notably in State of Rajasthan v. Balchand alias Baliay [(1977) 4 SCC 308].
In Hussainara Khatoon v. State of Bihar [(1980) 1 SCC 81], the Supreme Court highlighted the plight of undertrial prisoners who languished in jails for periods longer than the maximum sentence for the offences they were charged with. This case became a catalyst for the right to speedy trial under Article 21 of the Constitution. Similarly, in Gudikanti Narasimhulu v. P. Subhash Chandra Bose [(1978) 1 SCC 240], Justice Krishna Iyer underscored the importance of personal liberty and established a liberal approach to bail.
Bail and the BNS Era: Key Changes in Law
With the introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which substitutes the CrPC, questions have arisen regarding continuity and change in bail-related provisions. Chapter XXIX of the BNSS retains much of the language of the CrPC, particularly Sections 436 – 439, which are now Sections 479–482 in the BNSS. However, the BNS era has brought renewed attention to procedural justice.
Key updates include:
– Provision for electronic monitoring and house arrest (Section 479 BNSS) as alternatives to pre-trial detention.
– Time-bound investigation mandates and penalties for delay (Section 193 BNSS), indirectly impacting bail by curbing unjustified detention.
– Section 35: Grants early and statutory recognition of the rights of the arrested, reinforcing constitutional protections under Article 21.
Though substantive changes to bail law are minimal, these procedural tweaks encourage a shift from a custodial to a non-custodial mindset and provide an updated legal ecosystem for bail jurisprudence.
Judicial Interpretation: The Push Towards Reform
The judiciary continues to play a transformative role in evolving bail jurisprudence. A landmark decision is Satender Kumar Antil v. CBI [(2022) 10 SCC 51], where the Supreme Court issued comprehensive guidelines to prevent unnecessary arrests and promote a liberal approach to bail, especially in economic offences.
The Court noted that arrest should not be a punitive tool and emphasized the distinction between pre-trial detention and conviction. The judgment directed all courts to consider the necessity of arrest and stressed default bail rights under Section 167(2) CrPC (now Section 187(2) BNSS).
In Arnab Manoranjan Goswami v. State of Maharashtra [(2021) 2 SCC 427], the Supreme Court reiterated that personal liberty cannot be sacrificed on speculative grounds, affirming that courts must lean in favour of granting bail unless clear risks of absconding or tampering with evidence exist.
More recently, in In Re: Policy Strategy for Grant of Bail (2023), the Supreme Court proposed standardizing bail procedures across India and advocated the creation of a national bail guideline framework.
Gender and Bail: A Neglected Dimension
Gender also plays a crucial role in bail decisions. Courts in India have shown sensitivity in granting bail to:
- Pregnant women and single mothers,
- Transgender individuals, often facing abuse in custodial settings,
- Victims of domestic violence, falsely accused in retaliatory cases.
However, bail is often denied in sexual offence cases based on the severity of charges rather than evidentiary assessment. The BNS retains gender-sensitive provisions, but without adequate enforcement mechanisms, bail outcomes can remain uneven.
Challenges in Implementation
Despite legal and judicial advancements, real world implementation remains fraught with issues
– Arbitrary Arrests: Law enforcement agencies continue to misuse discretionary powers, often arresting accused persons mechanically without judicial scrutiny.
– Lack of Access to Legal Aid: Marginalized groups suffer due to inadequate access to competent legal representation, which significantly affects their ability to secure bail.
– Delay in Bail Hearings: Prolonged detention due to adjournments and congested dockets defeats the objective of speedy justice.
– Socio-economic Disparity: Wealthier accused can furnish sureties and navigate the legal process more efficiently, whereas the poor remain jailed for petty offences.
Comparative Analysis: India and Global Bail Practices
In the United Kingdom, bail is guided by the Bail Act, 1976, which emphasizes non-custodial approaches and imposes conditions only when necessary. Courts must provide written reasons when denying bail. In contrast, the United States follows a cash bail system, which has drawn criticism for perpetuating inequality. Several states have moved towards abolishing cash bail to ensure liberty is not linked to financial capacity.
India lacks a comprehensive Bail Act, and relies on judicial precedents and procedural provisions. However, the BNS framework along with guidance from the Supreme Court may set the stage for a statutory bail code that combines accessibility with accountability.
Suggested Reforms and the Way Forward
To ensure a just and effective bail system in the BNS era, the following reforms are crucial:
- Enactment of a Comprehensive Bail Law: A standalone legislation consolidating bail procedures, timelines, and rights of the accused would bring clarity and consistency.
2. Judicial Training and Accountability: Sensitization of magistrates and police officers to ensure bail is not denied arbitrarily.
3. Enhanced Legal Aid Services: Strengthening District Legal Services Authorities to ensure that the indigent are not denied liberty due to lack of representation.
4. Use of Technology and Data: Implementation of digital case tracking and AI-assisted risk assessments to guide bail decisions objectively.
5. Time-bound Bail Adjudication: Courts should be mandated to hear bail pleas within 3–5 days of filing, except in complex matters.
Conclusion
Bail is not a privilege; it is a legal right flowing from the constitutional promise of liberty under Article 21. The BNS and BNSS, 2023, while not overhauling bail law, mark a subtle yet significant move towards procedural fairness. Together with an evolving judicial conscience, these changes could pave the way for a more equitable and accessible criminal justice system. However, unless systemic issues like arbitrary arrests, delay, and lack of legal aid are addressed, bail will remain a mirage for many. The real test lies not in statutes or judgments, but in grassroots implementation. As long as the twin evils of arbitrary detention and legal inequity persist, bail will remain an unrealized promise for millions. The challenge now is to transform this promise into a lived reality, where liberty is not a privilege for the few but a guarantee for all.
References
- Article 21, Constitution of India.
- State of Rajasthan v Balchand alias Baliay (1977) 4 SCC 308.
- Hussainara Khatoon v State of Bihar (1980) 1 SCC 81.
- VR Krishna Iyer, *Off the Bench* (Eastern Book Company 1985).
- Code of Criminal Procedure 1973, ss 436–439.
- Bharatiya Nagarik Suraksha Sanhita 2023, ss 479–482.
- Satender Kumar Antil v CBI (2022) 10 SCC 51.
- Bail Act 1976 (UK).
- California Penal Code §1275 (US); Illinois Pretrial Fairness Act 2021.
- Constitution of India 1950, art 21.
