BAIL REFORMS IN INDIA: BALANCING LIBERTY AND JUSTICE

Abstract

This article discusses the historical evolution and constitutional framework of the bail system in India, tracing its roots from ancient texts and practices to modern legislation under the Bharatiya Nagarik Suraksha Sanhita, 2023. It throws light on the challenges facing the current system, including overcrowded prisons, prolonged pretrial detention, economic disparity, and inconsistent judicial discretion. The article highlights how these issues disproportionately affect the poor and marginalized, undermining the principle of equal access to justice. It further examines ongoing bail reform efforts such as risk-based assessment, non-monetary conditions, and community-based alternatives aimed at reducing reliance on cash bail. Emphasis is placed on balancing personal liberty with public safety and ensuring that the bail process aligns with constitutional and human rights principles.

History and Constitutional Background

The origins of bail can be traced back as early as 399 BC, when Plato made an attempt to arrange a bond for securing the release of Socrates. In medieval Britain, the circuit courts gradually evolved the practice of granting bail, and the modern concept of bail largely draws from these medieval laws. In the Indian context, Kautilya’s Arthashastra highlighted the importance of avoiding pre-trial detention, suggesting that a form of bail was recognized in ancient times. During the Mughal period of the 17th century, bail found expression through practices such as Muchalaka and Zamanat.

The law relating to bail in India is presently governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Although the BNSS does not explicitly define bail, it provides definitions of bailable offence and non-bailable offence under Section 478 & 480. [1]

Bail remains one of the vital concepts of criminal justice system in consonance with the fundamental principles enshrined in Parts Ill and IV of the Constitution along with the protection of human rights as prescribed under International treaties/ covenants[2]. When bail is refused, it is a restriction on personal liberty of the individual guaranteed by Article 21 of the Constitution and, therefore, such refusal must be rare.[3]

The evolution of bail jurisprudence in India was significantly shaped by landmark judgments, establishing that “bail is the rule and jail is the exception”. In the State of Rajasthan v. Balchand[4], the Supreme Court observed that the general principle is that bail should be granted rather than incarceration, unless there are specific factors indicating that the accused may attempt to evade justice, obstruct the legal process, reoffend, or threaten or influence witnesses.

Current Challenges in Bail Jurisprudence

In Satender Kumar Antil v. CBI[5], the Supreme Court recognized the issues within the bail system and urged the government to introduce a comprehensive Bail Act to bring consistency and clarity to bail procedures. The Court also highlighted the critical state of prisons, pointing out the problem of overcrowding caused by a high number of undertrial detainees, as well as concerns raised by civil society and other stakeholders. These are certain challenges faced in the bail system:-

• Complex bail procedures often result in many under-trial prisoners remaining in custody. This causes serious overcrowding in prisons. Overcrowded prisons struggle to maintain basic standards. Ultimately, this affects the dignity and safety of all inmates.
• The number of prisoners frequently exceeds the official capacity of prisons. This puts immense pressure on infrastructure and resources. It reduces the quality of life and rehabilitation efforts. Overcapacity also increases tension and violence within prisons.
• Prolonged detention violates human and constitutional rights like the right to personal liberty. Under-trials are held without conviction for extended periods. This infringes on their fundamental freedoms. Such violations undermine the legitimacy of the justice system.
• Bail denial punishes accused persons before they are proven guilty. It contradicts the core legal principle of “innocent until proven guilty.” This erodes public trust in the justice system. It can also cause psychological harm to the accused.
• Poor defendants often cannot afford bail due to financial costs. This creates inequality in access to justice, favoring the wealthy. Economic status unfairly influences pre-trial freedom. This deepens social and economic disparities in society.
• Under-trials are often housed with hardened criminals in overcrowded prisons. This exposes them to negative influences and criminal behaviour. It increases the risk of recidivism among under-trials. Such conditions hamper rehabilitation and reform efforts.
• When breadwinners remain incarcerated, their families face financial hardship. Prolonged detention worsens the economic and social condition of dependents. This creates a cycle of poverty and vulnerability. It also places additional social burdens on communities.
• Excessive detention of under-trials burdens courts and prison staff. It delays trials and wastes judicial resources. This limits the system’s ability to focus on reforms and rehabilitation. Efficient bail procedures could help reduce this strain.
• The arbitrary exercise of judicial discretion by judges and magistrates often leads to unequal outcomes and reinforces existing systemic disparities.[6]

The Law Commission, in its 268th Report highlighted addressed the concerning issue that bail is often easily accessible to the wealthy and influential, while less privileged individuals remain in jail awaiting trial. Aiming to make the bail process more equitable, the Commission led by former Supreme Court judge B.S. Chauhan, noted with concern that the current bail system in India is insufficient and ineffective in fulfilling its intended role.[7]

Bail Reform: A Way Forward

Bail reform refers to changes made to the existing bail system aimed at addressing its flaws and reducing inequality. The goal is to establish a more equitable and rational system that takes into account an accused person’s financial situation and their potential risk to public safety. The process of bail reform generally involves the following key aspects:

• Risk-Based Assessment: This approach uses tools to evaluate the likelihood that a defendant might miss court appearances or commit further offenses. Based on this assessment, courts decide on appropriate bail conditions—high-risk individuals may be held without bail, while low-risk individuals might be released with minimal or no monetary conditions.
• Abolition of Cash Bail: In some areas, cash bail has been eliminated entirely and replaced with alternatives such as release on personal recognizance or other non-monetary conditions.
• Pretrial Support Services: In certain regions, individuals released on bail or under alternative conditions receive support through pretrial services, which can include supervision, counseling, and substance testing.
• Lowering Repeat Offenses: Governments and non-profits in some areas have established bail funds to help low-income defendants secure release and avoid being held in custody before trial.
• Community-Based Alternatives: Some jurisdictions offer community-based measures instead of pretrial detention, such as supervised release, home confinement, or electronic monitoring.

In Shakil v. State (Govt. of NCT Delhi),[8] the petitioner, who was facing criminal charges, was granted bail by the Hon’ble Delhi High Court subject to certain conditions. Among these conditions, the Court directed that the petitioner must provide his mobile phone number to the Investigating Officer (IO) and ensure that the number remains active and operational at all times. Additionally, the petitioner is prohibited from switching off the phone or changing the number without prior notice to the IO during the bail period. Furthermore, the petitioner is required to share his live location with the IO via Google Pin.

 In Gautham Navlakha v. National Investigation Agency [9] the Court considered the scope of power of the Magistrate to authorise detention under Section 167 wherein it was held, inter alia, that the terms “such custody as it thinks fit”, as found in the Section, grants power to the Magistrate to order house arrest of the accused after considering factors such as his age, health condition, antecedents, nature of offence and the feasibility of carrying out such detention. As such, the power to detain an accused person under house arrest was read into the purview of Section 167 CrPC.

Bail reform is a complex issue that demands a holistic approach. It is essential to balance the protection of civil liberties, fair treatment of accused individuals, and public safety. Regular evaluation and adjustment of reform efforts are necessary to ensure they are effective and just.[10]

Balancing liberty and justice

Personal liberty is a fundamental and priceless right, essential for human dignity and protected by the Constitution. The sanctity of liberty is the fulcrum of any civilized society, as it forms the basis of individual freedom and democratic values. However, this liberty is not absolute. When someone misuses their freedom in a way that threatens public order or safety, the law can justifiably step in to restrict it. In such cases, courts must strike a careful balance between protecting personal liberty and ensuring justice, always acting within the boundaries of established legal principles, but not on personal whims.

In Ash Mohammad vs. Shiv Raj Singh [11] the Supreme Court of India cancelled the bail granted by the Allahabad High Court to an accused with 30 serious criminal cases. The Court held that although the High Court and Sessions Court have the power to grant bail under Section 439 of CrPC, personal liberty is not absolute and must be weighed against public safety. The accused’s 7-month jail stay was not sufficient justification for bail, especially given his criminal background, as no individual has the right to threaten the life or liberty of others. The Apex Court in para 30 has observed:-

“We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked.”

In the case of Prabhakar Tewari Vs. State of U.P. [12]and another, the Hon’ble Supreme Court has held that the mere existence of multiple pending criminal cases against an accused cannot, by itself, be a valid ground for denying bail.

In Kalyan Chandra Sarkar vs. Rajesh Ranjan [13], the Supreme Court held that the detention of an accused person facing non-bailable offences during the trial, unless granted bail, does not violate Article 21 of the Constitution. This is because such detention is carried out in accordance with the procedure established by law, and therefore, the right to personal liberty is not considered infringed in these circumstances.

In Narinderjit Singh Sahni vs. Union of India [14], the Supreme Court held that refusal to grant bail does not violate Article 21 of the Constitution when the accused faces multiple serious charges. In this case, the accused allegedly deceived millions of people by promoting fraudulent companies and had numerous cases pending across the country. The Court stated that the accused cannot claim a violation of personal liberty simply because various courts have issued production warrants, preventing his release from jail.

In the words of Justice V.R. Krishna “The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.”

Conclusion:

The bail system in India, though constitutionally protected, remains plagued by issues like prolonged detention, economic disparity, and arbitrary decisions. These challenges undermine the right to personal liberty and highlight the urgent need for reform. A shift toward risk-based assessments, non-monetary conditions, and consistent judicial practices is essential. Ensuring a fair and accessible bail system is crucial for protecting individual rights and maintaining public trust in the justice system.

References: 

[1] Rangita Chowdhury, Bail under Indian Legal System, (September 20,2025,8:55 PM), https://blog.ipleaders.in/bail-indian-legal-system/.

[2]Laws on Bail in India, (September 20,2025,9:02 PM), https://cdnbbsr.s3waas.gov.in.

[3] S.S. Upadhyay, Part-I Protection of Personal Liberty & Bail, (September 20,2025,9:08 PM), https://lawhelpline.in/.

[4] (1977) 4 SCC 308.

[5] (2022) 10 SCC 51.

[6] Nishant Dixit & Dr. Jyoti Yadav, An Analytical Study of Bail Jurisprudence and the Discretionary Power of Court Relating To Bail in India, Volume 4, (IJHSSM), Issue 2,(2024), https://ijhssm.org/.

[7] G. Keerthna, BAIL AND ITS REFORM: A STUDY, ISSN: O: 2319-6475, ISSN: P: 2319 – 6505, Volume 6; Issue 11, (2017), https://journalijcar.org/.

[8] BAIL APPLN. 732/2023.

[9] (2021) SCC Online SC 382.

[10] Ashu Singh Shekhawat & Prof.(Dr.) Jasvinder Singh, PROS AND CONS OF BAIL REFORM IN INDIA, (INT-JECSE),ISSN:1308-5581, Vol14, Issue02 (2022), https://www.int-jecse.net/.

[11] (2012) 9 SCC 446.

[12] 2020 (11) SCC 648.

[13] (2005) 2 SCC 42.

[14] AIR 2001 SC 3810.