Bail Reforms in India: Balancing Justice and Liberty

Published On: December 19th 2025

Authored By: Rupsa Laha

Marathwada Mitra Mandal Shankar Rao Chavan Law College under Savitribai Phule Pune University

Abstract

Millions of people inside India’s overcrowded and dimly lit jails are kept waiting for their day in court. These individuals are not confined due to the gravity of their alleged actions but because of procedural hurdles , lack of financial resources, and systemic delays. Bail, which is the temporary release of an accused while the trial is ongoing, is considered as one of the most powerful fences against personal rights and judicial fairness in any democracy. However in India, over the years, the privilege of bail has transformed from a means of safeguarding the law into an experience of uncertainty, arbitrariness, and deep social divides.[1]

The Supreme Court has taken some very decisive steps recently, the enactment of the Bharatiya Nyaya Sanhita (BNS) in 2023, and the voices of human rights activists growing louder are all signs of a watershed moment in the country’s stance on bail reform. The movement is centered on reviving justice as an ancient ideal while at the same time recognizing the need for human freedom.[2]

Introduction

Bail is one of the most debated issues in Indian criminal law, the main reason being that it deals with the central theme of Article 21 of the Indian Constitution, which assures the right to life and personal liberty. The point is quite basic yet very significant in a normative sense: the liberty of no person should be taken away unless it is approved by due process of law. Bail, at its core, is not just a procedural issue but a constitutional guarantee of freedoms.[3]

In the past, the Code of Criminal Procedure, 1973 (CrPC) has been the major law regulating the issue of bail either by giving or denying it, thus leading the judicial discretion for many years.[4] But the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is a very important change in the way the legislature deals with bail. Even though most of the BNSS provisions are similar to those in the CrPC, the reforms still bring in some significant differences which require a fresh review. [5]These changes reawaken the debates that have been going on for a long time on the manner in which courts should strike the balance between the two objectives that are at loggerheads: the safeguarding of individual rights on the one hand and the facilitating of criminal justice on the other.

Concept of Bail in Indian Law

Bail is a legal mechanism to ensure the conditional release of an accused before trial, premised on the presumption of innocence. Rooted in Article 21, which guarantees the right to life and personal liberty . This is governed by Code of Criminal Procedure from section 436 to 439 which is bifurcated into bailable and non bailable categories.

Types of Bail

Regular Bail – Granted after arrest, under Sections 436–439 CrPC/BNSS.This is the most common type of bail can granted to a person who has been arrested and is in police custody for an offense.
Anticipatory Bail – Pre-arrest protection under Section 438 CrPC/BNSS. It’s principles were established in the landmark Indian Supreme Court case Gurbaksh Singh Sibbia v. State of Punjab (1980). This section allows a person who reasonably fears arrest for a non-bailable offence to apply for anticipatory bail to a High Court.
Interim Bail – This is a short-term release granted to an individual while their application for regular or anticipatory bail is being heard by the court. [6]
Statutory / Default Bail – Also known as default bail under Section 167(2) CrPC/BNSS, when investigation is not completed within prescribed time limits.[7]

Underlying Principle

Bail as defined in State of Rajasthan v. Balchand (1977) “ bail is the rule jail is the exception.” The penal system is not the main aim of bail, however, it serves the function of guaranteeing that the accused will be present throughout the tr

Complexities of CRPC

Problems in the Bail System under the CrPC: A Question of Balancing Justice and Liberty

Arbitrariness in Judicial Discretion

The lack of uniform and binding statutory provisions regarding bail decisions led to a wide variation in the handling of the cases by different courts and judges. In principle, discretion is needed in order to have a fair system of justice, but in an unregulated manner under CrPC it often gave rise to arbitrariness that was very detrimental to the protection of society and at the same time to the safeguarding of personal freedom.[8]

Delay in Bail Hearings: Liberty Compromised by Judicial Backlog

One of the main reasons for bail applications getting delayed was the existence of procedural impediments and also courts being burdened with heavy schedules. Justice required a quick trial and a bail hearing that was on time, but freedom was negated as the accused people were kept in prison even before their cases had been heard.

Misuse of Bail: Liberty Threatening Justice

There have been some instances when those who were guilty took advantage of the bail facility and escaped or intimidated witnesses to be able to do so. Thus, the absence of restraining measures transforming liberty into a threat to justice, a reflection of the criminal bail provisions balancing act under the CrPC that is so hard to maintain.[9]

Judicial Contribution & Initiative to Bail Jurisprudence

Procedurally the Supreme Court has been a very important reference point in the process of bail jurisprudence of the protection of personal liberty enshrined in Article 21.

State of Rajasthan v. Balchand (1977)

It affirmed the principle “bail is the rule, jail is the exception” in State of Rajasthan v. Balchand (1977), whereby it laid down the law that pre-trial detention should be an exception and only when it is strictly necessary.[10]

Hussainara Khatoon v. State of Bihar (1979):

In the case of Hussainara Khatoon v. State of Bihar (1979), bail was recognized as linked with the right to a speedy trial and the Court’s attention was drawn to the condition of undertrials which caused not only delay in trials but also reforms in administration of justice.[11]

In Gudikanti Narasimhulu v. Public Prosecutor (1978) the Supreme Court focused on the principle of civil liberty and public interest being adequately balanced, while the bail granting power was left with the discretion of the judge who had to handle it with prudence.[12]

Arnesh Kumar v. State of Bihar (2014):

One of the directions, Arnesh Kumar v. State of Bihar (2014) imparted was that no automatic arrests should be made in cases of offences falling under the category of less than seven years, thus, the unnecessary detentions are curtailed and the liberty of individuals is maintained.[13]

Satender Kumar Antil v. CBI (2022):

The case of Satender Kumar Antil v. CBI (2022) marked the bail denial not being the source of punishment as one of the main themes of the new guidelines which were more rights-based and also stressed on the importance of even procedures being kept. [14]

The suo motu intervention of the Supreme Court during the COVID-19 pandemic resulted in the release of many undertrials to decongest the overcrowded prisons as one of the ways in which the Court’s commitment to rights even in emergencies was made manifest. The collective effect of these decisions is a shift in the judicial attitude towards bail policies that are progressive and liberal and in consonance with the Constitution[15]

From CrPC to BNSS: A Move Towards Citizen-Centric Justice

Colonial Legacy vs. Constitutional Liberty

The CrPC, based on colonial laws of 1898, was highly biased towards the state and significantly restricted individual freedom. On the other hand, the BNSS is a system established with the intention to safeguard people’s rights through a constitutional democracy. The latter ensures that the triumph of the law does not come at the expense of personal rights.[16]

Undertrial Crisis and the Right to Speedy Justice

The conduct of prolonged trials under the CrPC was the main reason for mass undertrial incarceration, as a result of which the people’ right to freedom were compromised. To resolve this issue, the BNSS has taken an initiative of making all procedures time-bound, e.g., framing charges within 60 days, thus ensuring rapid trials and bail decisions and hence, the protection of both justice and liberty.[17]

From Fragmentation to Uniformity
Undertrial Crisis and Denial of Liberty

Almost 75% of the prison population in India is made up of undertrials, and a large number of them are those who have been arrested for minor or trivial offenses. Pre-trial detention was introduced with an aim to protect the rights of the accused by ensuring his or her appearance in court; however, it had the effect of restricting liberty disproportionally to rights, thus violating the presumption of innocence.

Economic Discrimination: Liberty for the Rich, Jail for the Poor

Usually, a bail procedure under CrPC was closely related to money bail. While the wealthy were able to buy their way out, the poor had to remain behind bars even if the charges against them were minor ones. This gave rise to a situation where the scales of justice were not balanced and tainted by money, thus justice became linked to wealth rather than fairness, which was in contradiction with the constitutional guarantee of equality before law.[18]

CrPC had become inconsistent and thus, the application of justice was not the same in all cases. The purpose of BNSS in this regard is to provide a legal framework that is uniform and consistent with modernized rules. Moreover, in such a system, the citizens’ rights are not left dependent on procedural gaps.

Curtailing Arbitrary Arrests to Protect Liberty

The CrPC provisions were the cause of many instances of police abuse of power through arbitrary arrests. BNSS requires written justification as a reason for arrest and also prefers issuing notices for minor offences (punishable up to 3 years). Consequently, with this, the citizens’ rights are safeguarded by the prevention of unnecessary detention, while the law is also maintained as the police arrest only when it is really necessary.[19]

Technology for Transparent Justice

As a means to shorten the process of justice delivery, the innovations brought by BNSS include e-filing of FIRs and charge sheets, electronic summons, video-conferencing for bail hearings and mandatory forensic examination in serious crimes. At the same time, they also maintain the citizens’ rights by reducing prolonged custody as a result of procedural delays.[20]

Victim-Centric Justice and Balanced Liberty

BNSS empowers victims to exercise their rights by providing them with case details, participation in the proceedings, and a voice in bail matters. This ensures that while the suspects enjoy their rights and freedoms, the victims’ rights to receive justice are not ignored.

Prison Decongestion and Humane Liberty

The fact that there were a lot of prisoners who had to share small cells without enough air and light was a visual proof that the CrPC system had made a lot of mistakes in the bail jurisprudence. The new system is committed to the issue of prison overcrowding through the implementation of non-custodial programs and the automatic bail introduction in some specific offences, which will then reduce unnecessary incarceration and ensure justice through the appropriate regulations.[21]

Harmonization with New Criminal Codes

BNSS works together with Bharatiya Nyaya Sanhita (BNS) and Bharatiya Sakshya Adhiniyam (BSA) to draft a congruent justice system in which bail rules are in harmony with other changes made in the reform area. The latter is striking a balance between the protection of liberty and the enforcement of justice.

Balancing Justice and Liberty

One of the issues that bail jurisprudence faces is the balancing act:

Individual Liberty: The accused should be considered innocent until proven guilty.

Societal Interest: It is the duty of the justice system to ensure that the accused will not abscond, go on to commit a crime, or use the force against the victims/witnesses.[22]

These are balances that the judges make by looking into:

Seriousness of the crime.
Criminal history of the accused.
Probability/Chance that the accused will escape.
Duration of pre-trial detention.
Financial condition of the accused.

Hence, bail is not a privilege but a right—alleviated by the presence of duty.

Challenges in Current Bail Reforms ( BNSS )

Implementation Gap

Most of the bail reforms judicial pronouncements that are progressive still remain at the ground level unenforced due to lack of monitoring, weak institutional accountability, and resistance from traditional law enforcement practices which are not yet changed.

Police Discretion

Random arrests are still happening, as police often take advantage of the discretionary powers that are given to them, go around the safety measures, and focus on the control of the situation rather than the freedom of the people which is against the idea of reforms that are meant to reduce the unnecessary imprisonment.

Socioeconomic Inequality

Less privileged and marginalized communities have a hard time to get out on bail due to lack of legal support, not having enough money for a security deposit, and bias in the system, so that freedom becomes a privilege and not a right.

Backlog in Courts

The large number of cases that are waiting for trial causes a delay in bail hearings so that the undertrials are kept in prison for years, which is a violation of Article 21’s guarantee for a speedy justice and lowers the trust in the justice delivery system.

Special Legislations

The strict bail provisions in legislations such as NDPS, UAPA, and PMLA most of the time have precedence over constitutional safeguards thus, severely restricting the freedom and putting the accused in jail for a long time without the presence of any safety measures for the timely trial.

Way Forward: Suggestions for Reform

Codified Bail Guidelines: The statutory incorporation of judicial guidelines for consistency in bail decisions.
Non-Monetary Bail Conditions: Options such as passport surrender, electronic monitoring, or community bonds replacing financial sureties.
Legal Aid Expansion: Enhancing the provision of free legal services to the undertrials.
Time-Bound Bail Hearings: Courts are required to decide bail applications within stipulated deadlines.
Community Bail Mechanisms: Community or NGOs standing surety for indigent accused.
Prison Reforms: Regular audits of undertrial populations; automatic bail after maximum statutory detention.
Awareness and Training: Sensitization of police and judicial officers on bail jurisprudence.[23]

Conclusion

Bail reforms in India embody the constitutional struggle to balance justice with liberty. The judiciary has consistently emphasized that “bail is the rule, jail is the exception,” and the recent legislative shift from CrPC to BNSS reinforces this principle through modern, citizen-centric provisions.

Yet, challenges of implementation, inequality, and misuse persist. True reform lies not only in laws but in their faithful enforcement—ensuring that no individual is deprived of liberty due to poverty, delay, or arbitrariness.

A reformed bail system must enshrine fairness, consistency, and human dignity, thereby fulfilling the constitutional promise of Article 21. Only then can India claim that its criminal justice system truly balances justice with liberty.[24]