Bail Reform in India: Balancing Liberty and Justice

Abstract

Bail in India epitomises an essential evolution in criminal jurisprudence, reconciling the constitutional requirement of personal liberty under Article 21 with the societal needs of justice, safety, and administration. The transition from the Code of Criminal Procedure, 1973 (CrPC) to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), dated July 1, 2024, among other changes, prefers the application of bail for undertrials who have undergone one-third of the maximum sentence, enhanced digital means of time-bound trials, and meets stricter conditions for serious crimes to protect the interests of victims and witnesses. The Article goes into the historical framework of bail, precedents of concern including prisons running below capacity with 76% unto undertrials as per India Justice Report, 2025, references from other systems of the world, and judicial developments till September 2025 including the tightening of interim bail-reform compliance by the Supreme Court in its January 2025 order and the judgment of September 2, 2025, SLP (Crl.) No. 9082 on conditional bail. The article puts a case for systemic reforms aimed toward remedying socio-economic injustice and arbitrary denials of bail and puts their reasons in order for the sake of proportionality. Proper implementation of BNSS with judicial intervention shall provide relief towards the undertrial crisis and creation of a just system, but its uneven progress, as recorded in the Supreme Court half-yearly review of 2025, demands closer scrutiny.

Keywords: Bail Reforms, BNSS 2023, Personal Liberty, Article 21, Undertrial Prisoners, Judicial Discretion, Presumption of Innocence, Prison Overcrowding.

Introduction: Defining the Constitutional Mandate

Bail is an indispensable element in the realm of criminal jurisprudence; it serves to mitigate the rights of the accused and to maintain the sanctity of the judicial procedure. The foundational principle on which bail is founded is that of presumption of innocence; accordingly, a person cannot be sent to jail without just cause before trial. It is a constitutional provision in India that Article 21 of the Constitution of India provides for the ˚right to life and personal liberty,’ which means no person shall be deprived of the same except in accordance with the procedure established by law. An arbitrary refusal of bail amounts to an unjustified deprivation of liberty, often seen alongside Article 14, which demands equality before the law, precluding differential treatment on socio-economic grounds.

The classic dictum of Justice V.R. Krishna Iyer in State of Rajasthan v. Balchand (1977 AIR 2447), where he stated that “bail is the rule and imprisonment the exception,” has been the guiding principle in Indian law, affirming that pre-conviction custody should not serve the purposes of punishment. But the reality is quite the opposite: as per the India Justice Report 2025, undertrials make up 76% of the prison population, while the jails themselves are overpopulated by about 131%. This places an undue burden on the already-distressed population, most of whom are marginalised and cannot furnish sureties as bail conditions. For example, around 407 undertrial prisoners in Delhi jails face long-term incarceration owing to such constraints.

The elimination of the CrPC and the enactment of the BNSS in 2023 reflect a legislative attempt to steer towards modernisation. It took effect on July 1, 2024, and introduced such provisions as Section 479 pertaining to bail in first-offender cases after one-third of the maximum sentence, enhancing access to digital interfaces instead of physical processes. Retrospective application of these provisions, affirmed by the Supreme Court in 2025 in cases like Re: Inhuman Conditions in 1382 Prisons, carved out similar bail rights for pre-BNSS undertrials in order to decongest prisons. Yet even so, in its half-yearly review preceding 2025, the Supreme Court continues to observe irregular implementation and “uneven commitment” toward protective bail schemes. This article explores the existing history, challenges, comparative outlooks, judicial and legislative developments, controversies for reforms, and liberty and justice considerations, arguing for a rights-based take on India’s criminal justice reform.

Historical and Legal Framework

Bail in India is indeed a colonial concept, transplanted from British Common Law and embedded into the CrPC 1973. The CrPC categorises bailable and non-bailable offences under Sections 436 to 450: bailable offences are those for which bail is a right, whereas non-bailable offences are those for which bail is discretionary, depending upon the gravity of the offence and the flight risk involved. Section 438 protects one from pre-arrest, anticipating misuse of power. Judicial interpretations have broadened this provision: in Gudikanti Narasimhulu v. Public Prosecutor (1978 AIR 429), the Supreme Court weighed considerations of liberty against public safety, whereas in Hussainara Khatoon v. State of Bihar (1979 AIR 1369), extended detention was related to violations of the right to a speedy trial under Article 21.

The BNSS of 2023 has streamlined procedures and empowered victims’ rights. Section 479 lays down a list of offences for granting release on bail to undertrial prisoners and bars all capital offences; Section 482 improves anticipatory bail and requires notice to the prosecutor in the High Courts, to maintain fairness and equity. Special laws like UAPA, NDPS, and PMLA impose reverse burdens with another hurdle in granting bail. However, some judgments in 2025 have furnished retrospective protections of the BNSS: in Badshah Majid Malik v. Directorate of Enforcement (2024, continued in 2025), the Court gave a retrospective tilt to BNSS over the PMLA twin conditions of post-detention threshold; in SLP (Crl.) No. 9082, the Supreme Court in its judgment of 2nd September, 2025, also reiterated that the grant of bail is inherently conditional and revocable in the event of breach of such conditions, per the precedents of State of M.P. (2022).

Functioning as a stepping stone for investigators and prosecutorial officers, the guidelines refer to B.N. Srikrishna (BNSS) principles, which shift from a defendant-centric view towards balancing the interests of various stakeholders, amongst which is efficient investigation. But it is equally evident that the framework can only be as effective as the implementation gaps that confront issues like digital illiteracy in rural courts. 

Challenges

Bail reforms are subject to multifarious challenges, notwithstanding many legislative advancements. Hence, the undertrial crisis is very acute: The India Justice Report 2025 captures 76% of all inmates as undertrials, showing an increase from 66% a decade ago, with 301 prisons that hold only undertrials, and with Uttar Pradesh, Bihar, and Maharashtra states accounting for 42%. Overcrowding at 131% capacity disrespects dignity and health, thus going against Article 21.

Factors standing in the way exacerbate inequalities: 93% of such undertrials, per recent data, appear to be financially incapable of furnishing sureties, while migrants face documentation problems. Judicial discretion is variable and has often been subject to political pressures, with arbitrary denials in sensitive cases frequently being followed up upon, as criticised in Satender Kumar Antil v. CBI (2022). The matter is further exacerbated by specialized legislations: Section 43D(5) of the UAPA compels the courts to find that the accused is not guilty, thereby denying bail or leading to protracted detention; this was clearly brought forth in Union of India v. K.A. Najeeb (2021 AIR 712), where the Supreme Court granted bail, noting that the suspension of Article 21 could not be countenanced.

Coming to BNSS implementation, infrastructural gaps remain: delayed in training as of mid-2025, and are digital FIRS and e-courts causing procedural inefficiencies. The Supreme Court, on its own motion in January 2025, tightened compliance by mandating uniform guidelines but recent half-yearly reviews bring in more inconsistencies. Such issues demand reforms urgently if bail is not to remain a hangout of the privileged. 

Comparative Perspective

International systems on bail give working standards for India. In the United States, the Eighth Amendment bans excessive bail, and although the Bail Reform Act of 1984 allows preventive detention in certain high-risk cases, risk assessment procedures have been put in place to curb biases against cash bail. Reforms have been implemented in New York and California since 2019 to lessen monetary conditions and address economic discrimination. 

The UK’s Bail Act, 1976, presumes that bail should be granted unless justified by a risk of reoffending or absconding, thus favouring non-monetary conditions such as electronic monitoring and curfews for proportionality. Canada’s Charter of Rights and Freedoms, section 11(e), treats detention as a last resort, focusing on public confidence and alternatives to mitigate bias against indigenous and marginalised groups.

According to this framework, BNSS follows by fixing electronic monitoring pursuant to Section 479 and the plea bargaining sunset clause (Section 290, within 30 days), thus moving away from cash sureties. India could perhaps look into adopting risk assessment tools and measures used in the U.S. to alleviate the disparities, as seen on the Canadian front, so that detention only remains in exceptional cases. These comparisons point toward the necessity for prioritising alternatives in India, thereby reinforcing BNSS within the rights-based framework itself. 

Judicial and Legislative Developments

Judicial decisions have contributed towards bailing reforms. The Supreme Court has intervened in cases of mechanical arrests post-Arnesh Kumar v. State of Bihar (2014 AIR 2756). Important developments in 2025 are: January’s order enforcing Antil guidelines for uniform compliance; and July 22, 2025, Delhi High Court judgment in Naresh Kumar v. State of NCT of Delhi, granting bail under UAPA pursuant to speedy trials. The Supreme Court’s bail matters list of August 22, 2025, and September 2 judgment in SLP (Crl.) No. 9082 draws attention to conditional bail being revocable as a matter of law. The ongoing fact test of BNSS is under consideration in the matter of Umar Khalid’s bail, adjourned to September 22, 2025.

Legislatively, BNSS restores the rights of victims and digital evidence, with 2025 updates to prosecution directorates. The government’s rejection of a standalone Bail Act, citing sufficiency of BNSS, aligns with the Antill calls for standardisation. While they mark a step forward, effective implementation needs to follow. 

Argument for Reforms

The realisation of bail as a rule requires the uniform codification of Antil-like guidelines that give preference to personal bonds over sureties. Electronic monitoring under BNSS may be one such alternative, eliminating financial barriers for the accused. There have been calls for trial in default of bail under Section 187 BNSS to be put on a fast track and penalise delays. Legal aid and technological infrastructures ought to be enhanced to bring greater inclusion through digital access. Independent audits of special laws would allow for proportional application and reduce the number of undertrials. 

Balancing Liberty and Justice

The doctrine of bail jurisprudence commands proportionality: As observed in Maneka Gandhi v. Union of India(1978 AIR 597), restrictions must be reasonable. Further, arbitrarily disposing of bail applications is subject to judicial review under Articles 32/226 of the Constitution (exercised through writ petitions). In special laws, constitutional rights prevail, as in the 2025 rulings. The BNSS maintains a balance by providing for victim input in heinous matters, thus creating equity without subjecting liberty to avoidable restraints. 

Conclusion

The BNSS reforms treat bail as a constitutional right, seen in an overcrowding context, in retrospection and innovations. However, there are 76% undertrials and hence certain challenges that will require judicial vigilance and reforms. Meanwhile, the other models uphold proportionality. Future jurisprudence should give effect to Article 21 as a promise of justice to all. 

References 

1. State of Rajasthan v. Balchand, AIR 1977 SC 2447 (India).
2. Bharatiya Nagarik Suraksha Sanhita, No. 46, Acts of Parliament, 2023 (India).
3. Satender Kumar Antil v. CBI, (2022) 10 SCC 51 (India).
4. Union of India v. K.A. Najeeb, (2021) 3 SCC 713 (India).
5. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 (India).
6. Maneka Gandhi v. Union of India, AIR 1978 SC 597 (India).
7. Mohammad Azeem Chaudhari & Astha Srivastava, Bail and Judicial Review, 5(10) Indian J. Legal Rev. 392 (2025).
8. Manish Tripathi, Right to Bail in India, 5(1) Indian J. Legal Rev. 472 (2025).
9. Anshika Pandey & Satish Chandra, Revisiting Bail Laws in India: A Review of CrPC and BNSS in Light of Recent Legal Trends, 8(5) Int’l J. Advanced Multidisciplinary Sci. Rsch. 21 (2025).