BAIL JURISPRUDENCE AFTER THE BHARATIYA NYAYA SANHITA: IS “BAIL NOT JAIL” STILL THE NORM?

Abstract

India’s criminal justice system is undergoing a transformative shift with the enactment of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaces the Code of Criminal Procedure and formally codifies bail jurisprudence. This article examines whether the constitutional maxim “bail, not jail” continues to hold in post-reform India, analysing the new statutory framework, the enduring primacy of Article 21, the contrasting regimes under special statutes like the UAPA and PMLA, and recent trends and inconsistencies in Supreme Court bail jurisprudence. Through a comparative lens, the article argues that while the BNSS signals progressive intent, structural exceptions and judicial inconsistency continue to undermine the practical realisation of the right to liberty for undertrial prisoners in India.

I. Introduction

The right to bail in India has traditionally been viewed through the lens of Article 21 of the Constitution, which guarantees the right to life and personal liberty. The Supreme Court has long held that “bail is the rule and incarceration the exception,” reflecting the presumption of innocence. In practice, however, India’s criminal justice system is strained: over 70% of prisoners are undertrials, many unable to meet bail conditions. In 2023–24, the Indian Parliament overhauled the criminal law through three new codes — the Bharatiya Nyaya Sanhita (BNS) for offences, the Bharatiya Nagarik Suraksha Sanhita (BNSS) for procedure, and the Bharatiya Sakshya Adhiniyam for evidence. These reforms explicitly redefined bail, ostensibly to streamline and modernise it. But in the wake of these changes, do courts still treat bail as the norm? This article examines: (a) the new bail provisions under the BNSS and their rationale; (b) Article 21 and the right to liberty in bail cases; (c) the treatment of special statutes (like UAPA/NDPS) versus ordinary offences; (d) recent Supreme Court trends and inconsistencies in bail orders; (e) delay as a ground for bail; and (f) a comparative glance at bail presumptions abroad. Throughout, we analyse how these developments affect personal liberty and whether the mantra “bail, not jail” still holds in India.

II. Bail Under the New Criminal Codes (BNSS)

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, replaces the old Code of Criminal Procedure and introduces detailed reforms to bail provisions. It clearly defines “bail” and related terms, and classifies offences as bailable or non-bailable. Under Section 478 BNSS, bailable offences grant an accused the right to bail; Sections 480–483 require judicial discretion for non-bailable cases. Key reforms include:

Mandatory Jailer Referral (Section 479): If an undertrial has served a specified period — one-third of the maximum sentence for first-time offenders, or one-half for repeat offenders — the jail superintendent must seek bail, reflecting the Hussainara principle of remedying prolonged pre-trial detention. The Supreme Court has directed this provision to apply retroactively.
Flexible Police Custody (Section 187): Police may now detain an accused for up to 15 days across a 60-day investigation window, instead of a continuous 15-day period, potentially delaying the bail trigger of chargesheet filing.
Restricted Statutory Bail (Sections 187, 480): Unlike the old CrPC, which mandated bail after half the maximum sentence, the BNSS denies statutory bail to undertrial persons facing multiple charges or pending cases, preventing automatic release.
Interim and Anticipatory Bail: The BNSS retains anticipatory bail (Section 482) but removes specific statutory criteria, granting courts broader discretion. It also retains interim bail, allowing short-term release on humanitarian grounds.
Bail After Conviction: The code continues the practice of bail during appeal under Section 474 BNSS, akin to Section 389 of the old CrPC.

Overall, the BNSS aims to codify and clarify bail norms in alignment with international standards, including the presumption of innocence. It affirms the right to bail unless lawfully denied. However, these reforms introduce significant exceptions: expanded police custody powers and restrictions for multi-case scenarios narrow the pool of eligible undertrials. PRS Legislative Research notes that while the old law promised bail after half a sentence per case, the BNSS often withholds it when multiple cases are involved, potentially worsening prison overcrowding by keeping more accused persons in custody. Thus, although the legislative intention was to make “bail the rule,” the new code may, in practice, leave many deserving individuals behind bars.

III. Article 21 and the Right to Bail

Bail jurisprudence[1] fundamentally revolves around Article 21’s[2] assurance of personal liberty. The Supreme Court has consistently stressed that merely being accused does not strip away all constitutional protections. In Maneka Gandhi v. Union of India (1978),[3] the Court ruled that any law depriving a person of life or liberty must be “just, fair, and reasonable” — a criterion that now guides bail[4] decisions. As a recent Bombay High Court judgment noted, “the guarantee of life and liberty cannot be denied to even a suspect.” Even before trial, an accused’s liberty must be balanced against societal interests. The BNSS recognises this, referencing the presumption of innocence enshrined in ICCPR and UDHR Article 11, and aiming to minimise arbitrariness.

The well-known maxim “bail is the rule, jail is the exception” stems directly from the principles of Article 21. The Supreme Court articulated this phrase in State of Rajasthan v. Balchand (1977)[5] and reaffirmed it in subsequent cases, including Sanjay Chandra v. CBI (2012).[6] Practically, this means that an accusation or serious charge alone does not justify detention. The Court has repeatedly warned that denying bail without clear justification violates due process. In Arnesh Kumar v. State of Bihar (2014),[7] the Court held that arrests for certain offences should not be routine, so as to avoid unnecessarily curtailing personal liberty. Likewise, in anti-conversion cases arising under the Uttarakhand Freedom of Religion Act, the Court granted bail to consenting adults partly because prolonged custody violated Article 21.

Therefore, under Article 21, bail should not be a mere formality. The right to liberty obliges courts to scrutinise the grounds for detention carefully. When the case against an accused is weak or investigations are slow, courts are expected to resist extending remand. This approach is rooted not only in statutory law but also in constitutional principle. One analysis notes that courts have referred to accused individuals as “guardian angels of liberty,” emphasising that personal freedom must guide bail decisions. Overall, recent legal developments have consistently prioritised personal freedom in bail jurisprudence, and any deprivation of liberty must satisfy the fairness standard under Article 21.

IV. Special Statutes and Preventive Detention

While the BNSS reformed general criminal procedure, specific special statutes — the Unlawful Activities (Prevention) Act (UAPA, 1967),[8] the Prevention of Money Laundering Act (PMLA, 2002),[9] and the Narcotic Drugs and Psychotropic Substances Act (NDPS, 1985)[10] — remain largely unchanged. These laws impose bail restrictions far stricter than those for ordinary offences. For instance, Section 43D(5) of the UAPA[11] stipulates that bail shall be granted only if the court is satisfied that there is no prima facie case of involvement in terrorist activities. Similarly, Section 45 of the PMLA denies bail unless the Special Court is confident that the accused is innocent and not a flight risk. Consequently, bail under such statutes is rare.

In practice, this creates a two-tier system: one in which ordinary criminal cases still benefit from the “bail, not jail” presumption (albeit limited by the BNSS’s specific exceptions), and another in which individuals accused under special laws face near-automatic detention pending trial. The Supreme Court has occasionally challenged this approach. In August 2024, a Bench reiterated that “bail, not jail, is the rule even in exceptional law cases like UAPA.” Justice Oka emphasised that denying bail in deserving UAPA cases violates Article 21 and accordingly granted bail to an accused after noting prolonged custody. Similarly, in Manish Sisodia v. Enforcement Directorate and other PMLA cases, the Court highlighted that even strict statutory conditions must yield to the fundamental right to personal liberty when detention becomes excessive.

However, empirical studies reveal a bleak reality. One analysis describes India’s preventive detention regime as two-layered: the regular criminal justice system, which follows due process, and a parallel regime under laws like the NSA, UAPA, and PSA, where due process is largely absent.[13] Detainees under these statutes cannot invoke standard bail provisions; Article 22[12] explicitly excludes preventive detention from ordinary arrest safeguards. These laws also severely restrict judicial review of detention on merits, preventing courts from examining the sufficiency of evidence or the subjective judgments of detaining authorities. Practically, this means detainees are held in prolonged custody by design: UAPA permits pre-charge detention of up to 6 months (often extended), during which bail is nearly impossible to obtain, while under the NSA, detention can last up to twelve months without a chargesheet. Despite the new codes’ ostensibly liberal veneer, these special statutes continue to dictate detention policies, overriding the “bail is the rule” principle through legal exceptions that frequently sacrifice individual liberty.

V. Supreme Court Trends and Inconsistent Standards

The recent bail jurisprudence of the Supreme Court demonstrates notable inconsistency. While the Court officially maintains that bail is the default and incarceration is an exception, practical outcomes often diverge sharply. PRS Legislative Research notes that the Court “has held that bail is the rule and incarceration is the exception,” and during the 2024–25 review period, it emphasised that courts “should not hesitate” to grant bail when justified under Article 21. In Ashok Dhankad v. State of NCT of Delhi (2025),[14] a Bench established bail guidelines balancing liberty and case severity, emphasising that bail is not a punishment and considering factors such as the seriousness of the offence, potential for influence over witnesses, conduct of the accused, and social status. The Court also distinguished between setting aside bail on appeal and cancelling bail for post-release misconduct, warning against superficial analysis.

In practice, however, decisions are inconsistent. A study by the Supreme Court Observer for 2024–25 found a “sharp divergence between principle and practice.” Cases with similar facts and applicable statutes resulted in different outcomes — some benches granted bail, others denied it. For example, in 2024, Justices Sundresh and Kumar in Gurwinder Singh v. State of Punjab refused bail to a UAPA detainee despite prolonged custody, yet the same bench, six months later, granted bail in Mohd. Enamul Haque v. Enforcement Directorate, citing trial delays. Similarly, one bench denied bail to a terror suspect, citing the seriousness of the charges, whereas another allowed release despite UAPA restrictions. Justice Trivedi and Justice Mithal upheld the detention of PFI activists on national security grounds but later criticised courts for granting bail too readily in money-laundering cases.

Overall, bail outcomes often depend on the composition of the bench and, at times, the identity of the accused. The Supreme Court Observer lamented that the same statutory provisions yield contradictory results owing to “rhetoric, subjectivity, and selective readings of Article 21.” There is a discernible pattern of selectivity: public figures often invoke Article 21 broadly, while activists face liberty restrictions, undermining the principle of “bail, not jail.” Recent judicial directives also send mixed signals — at times urging quick disposal of bail applications, while at other times criticising courts for undue leniency in grave cases. The broader legal landscape reflects a fluctuating tension between liberty and security.

VI. Delay as a Ground for Bail

A long-standing question in Indian bail law is whether trial delay, by itself, can justify release. Historically, the Supreme Court in Babu v. State of Andhra Pradesh (1997) recognised that an unexplained delay in trial may violate Article 21 and weigh in favour of bail. The BNSS codified this principle in Section 187: failure to file a chargesheet within 60 or 90 days entitles the accused to bail upon furnishing a bond, akin to the statutory bail provision under the old Section 436A CrPC. The BNSS allows staggered custody, mandates a chargesheet within a fixed period, and grants bail by default if that period lapses.

Recent trends show courts are increasingly willing to release detainees held for inordinately long periods. On 18 February 2025, the Supreme Court granted bail in Subhelal v. State of Chhattisgarh,[15] a non-violent NDPS case, because the trial had barely commenced despite months of detention. The Bench observed that in a Magistrate’s case where a chargesheet has been filed but the prosecution is “glacial,” prolonged custody weighs in favour of bail. High Courts too have lately granted relief on delay grounds — a recent Allahabad High Court order freed an accused in a hate-speech case because his custody had stretched for months without any appreciable progress.

Yet this approach is not uniform. As noted, a recent Bench denied bail in Gurwinder Singh[16] despite five years of custody, explicitly holding that delay alone, particularly in “grave offences,” is insufficient justification. Still, there is a perceptible shift: courts are increasingly cognisant that excessive pre-trial detention implicates Article 21. When the state keeps an undertrial in custody for years without a trial date, the purpose of detention — ensuring attendance — is effectively lost. In consequence, delay has become a more potent argument for bail, especially where investigations have had ample time and the case is ready for trial. This growing judicial sensitivity is both a recent development and a throwback to the Hussainara Khatoon[17] era, reaffirming that justice delayed should not mean liberty denied.

VII. Comparative Perspective: Presumption of Liberty Abroad

Unlike India’s evolving and fragmented legal framework, many mature democracies have established a clear default in favour of bail over detention. The United Kingdom’s Bail Act 1976,[18] for instance, presumes in favour of release: Section 4(1) provides that any person accused of an offence “shall be granted bail,” unless specific statutory conditions for denial are satisfied. An accused need only demonstrate narrow grounds — such as flight risk, public danger, or interference with justice — to be held in custody. Similarly, the Eighth Amendment to the United States Constitution[19] provides that “excessive bail shall not be required,” which courts have interpreted to mean bail should be reasonable and non-oppressive; many U.S. jurisdictions favour non-monetary release conditions for non-dangerous suspects.

India’s Supreme Court highlighted these models in July 2022, encouraging the government to consider a dedicated Bail Act modelled on those abroad. The Court noted that countries such as the United States, United Kingdom, Australia, and New Zealand have comprehensive bail laws with clear guidelines on release and detention, and that “the position in India is no different” in terms of constitutional aspiration. Many practitioners agree — one senior advocate observed that securing bail in the United Kingdom or United States is often considerably easier than in India, even for serious offences, owing to different approaches to managing flight risk and absconding.

This comparative perspective highlights India’s unique structural challenges. Unlike foreign jurisdictions where bail law is codified and relatively consistent, Indian law is fragmented across the BNSS, the BNS, and numerous special statutes. This fragmentation leads to conflicting rules and inconsistent outcomes. Internationally, pre-trial detention is treated as a genuine exception, and courts trust the accused to appear at trial. India has expressed a similar aspiration, but its numerous exceptions — automatic denial under UAPA or NDPS, flexible custody regimes, and multi-case bars on default bail — undermine the practical presumption of liberty. The demand for a single, unified bail legislation reflects the need to address this structural gap; as the Supreme Court emphasised, the presumption of innocence must be central to any bail framework.

VIII. Conclusion

The enactment of the Bharatiya Nyaya Sanhita and the Bharatiya Nagarik Suraksha Sanhita marks a significant step towards formalising India’s criminal law, including provisions on bail. Crafted with a constitutional ethos, these codes emphasise the protection of personal liberty and the presumption of innocence. They explicitly uphold the “bail, not jail” principle and introduce measures such as mandatory undertrial bail referrals and time-bound chargesheets to reduce prison congestion.

However, the outcomes are mixed. While the codes reaffirm that most accused persons should be released pending trial, they also create new exceptions — such as barring multi-case undertrials from default bail — and complex procedures that may hinder timely release. Existing special laws remain unchanged and often enforce near-total bail bans. Courts have sometimes invoked Article 21 to bypass these statutes, but such interventions are inconsistent. Consequently, many accused under UAPA or NDPS face years in detention before their bail applications are even heard.

Recent Supreme Court actions suggest awareness of this tension. The Court continues to endorse bail as the default and has issued new guidelines to strike a constitutionally sound balance. Yet inconsistent rulings — denying bail in some terror cases while granting it in factually similar ones — highlight that legal calibration often overrides clear constitutional directives. While delay and overcrowding are increasingly recognised as Article 21 violations, addressing these issues largely depends on individual judicial discretion.

Ultimately, India’s bail jurisprudence remains a work in progress. The constitutional guarantee of liberty under Article 21 is strong on paper, and recent reforms reaffirm this commitment. Still, “preventive detention” statutes and special laws act as structural constraints, systematically restricting bail availability. The ongoing judicial effort aims to reconcile these opposing forces. Whether “bail, not jail” will ultimately prevail depends on future legal developments and, potentially, new legislation establishing a unified bail framework. Without a more consistent and principled approach, the right to bail risks being compromised by security concerns and procedural complexity, leaving its practical realisation deeply uncertain.

References

[1] Supreme Court Observer, Bail Jurisprudence Annual Review 2024–25 (SCO 2025).
[2] Constitution of India 1950, art 21.
[3] Maneka Gandhi v. Union of India (1978) 1 SCC 248 (SC).
[4] Supreme Court Observer, Bail Jurisprudence Annual Review 2024–25 (SCO 2025).
[5] State of Rajasthan v. Balchand (1977) 4 SCC 308 (SC).
[6] Sanjay Chandra v. Central Bureau of Investigation (2012) 1 SCC 40 (SC).
[7] Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 (SC).
[8] Unlawful Activities (Prevention) Act 1967, s 43D(5).
[9] Prevention of Money Laundering Act 2002, s 45.
[10] Narcotic Drugs and Psychotropic Substances Act 1985.
[11] Unlawful Activities (Prevention) Act 1967, s 43D(5).
[12] Constitution of India 1950, art 22.
[13] Gautam Bhatia, ‘Preventive Detention and the Constitution’ (2023) Indian Constitutional Law and Philosophy Blog.
[14] Ashok Dhankad v. State (NCT of Delhi) (2025) (Supreme Court of India).
[15] Subhelal v. State of Chhattisgarh (2025) (Supreme Court of India).
[16] Gurwinder Singh v. State of Punjab (2024) (Supreme Court of India).
[17] Hussainara Khatoon (I) v. State of Bihar (1980) 1 SCC 81 (SC).
[18] Bail Act 1976 (UK), s 4(1).
[19] US Constitution amend VIII.