Published On: December 19th 2025
Authored By: Nikita Kumari
Bhagat Phool Singh Mahila Vishwavidyalaya, Khanpur Kalan, Sonepat
Introduction
Bail jurisprudence in India has long reflected the tension between two competing imperatives of the criminal justice system: the constitutional promise of personal liberty on one hand, and the societal demand for order, justice, and deterrence on the other. At its core, bail represents the judicial acknowledgment that detention before conviction is an exception, not the rule. Yet, in practice, India’s prisons remain overcrowded, with over three-fourths of the prison population being undertrial prisoners.[1]
The recurring concern, therefore, is whether the system of bail as it exists today truly secures the presumption of innocence and the protection of liberty guaranteed under Articles 14, 19, 21, and 22 of the Constitution, or whether it has devolved into an arbitrary mechanism heavily influenced by socioeconomic status, judicial discretion, and political considerations.
The issue has acquired renewed urgency in the wake of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which seeks to replace the Code of Criminal Procedure, 1973. While BNSS incorporates certain procedural changes, critics argue that it fails to meaningfully address the structural inequities in bail decisions. In light of this, it is necessary to revisit the constitutional, statutory, and judicial approaches to bail, identify systemic challenges, and explore reforms that balance individual liberty with societal justice.
I. Constitutional and Statutory Framework of Bail
The concept of bail in India, though not expressly defined in statutes, finds implicit recognition within the constitutional guarantee of life and personal liberty under Article 21.[2]The Supreme Court in Hussainara Khatoon v. State of Bihar[3] famously observed that the right to a speedy trial and the right to bail are intrinsic to Article 21.
A. Constitutional Foundations
– Article 14 ensures equality before law, demanding that bail decisions are free from arbitrariness.
– Article 21 mandates that no person shall be deprived of liberty except according to a fair and just procedure.
– Article 22 provides specific safeguards against arbitrary arrest and detention, including the right to be informed of the grounds of arrest and the right to consult legal counsel.
B. Statutory Provisions under CrPC (and BNSS 2023)
The Code of Criminal Procedure, 1973, classified offences as bailable and non-bailable. Sections 436–450 laid down the framework for bail, including powers of police and courts.
– Section 436 CrPC: Mandatory bail in bailable offences.
– Section 437 CrPC: Court discretion in non-bailable offences, with exceptions (e.g., serious crimes).
– Section 438 CrPC: Anticipatory bail, introduced after the 41st Law Commission Report and upheld in Gurbaksh Singh Sibbia v. State of Punjab.[4]
– Section 439 CrPC: Special powers of High Courts and Sessions Courts.
Under the BNSS 2023, these provisions have been largely retained with minor procedural modifications, leading many scholars to argue that the reforms are cosmetic rather than substantive.
II. Judicial Approach to Bail
Judicial interpretation has been the cornerstone of bail jurisprudence in India. The Supreme Court and High Courts have repeatedly stressed that bail is the rule and jail is the exception.
In Gudikanti Narasimhulu v. Public Prosecutor[5], Justice Krishna Iyer emphasized that personal liberty should not be sacrificed unless absolutely necessary. In Hussainara Khatoon (1979), the Court highlighted the plight of undertrial prisoners and linked bail directly to Article 21.
In Arnesh Kumar v. State of Bihar[6], the Court cautioned against routine arrests and stressed proportionality in granting bail. More recently, in Satender Kumar Antil v. CBI[7], the Supreme Court laid down comprehensive guidelines to ensure uniformity in bail decisions and prevent arbitrary incarceration.
Despite such pronouncements, inconsistency persists due to excessive judicial discretion, lack of clear statutory criteria, and socio-economic disparities.
III. Challenges in the Current Bail System
The existing bail framework suffers from several systemic challenges:
1. Overcrowding of Prisons: According to NCRB data, more than 75% of prisoners in India are undertrials, many unable to secure bail due to poverty.[8]
2. Inconsistency and Judicial Discretion: Bail decisions often vary widely depending on the judge, jurisdiction, and socio-political context.
3. Economic Inequality: Poor accused persons frequently languish in jail for inability to furnish sureties or bonds, undermining the principle of equality.
4. Delays in Justice: Procedural backlogs often mean that undertrials spend more time in prison awaiting trial than the maximum sentence for their alleged offence.
IV. Comparative Perspectives
The problem of bail is not unique to India. A comparative analysis with other jurisdictions highlights alternative approaches:
1. United Kingdom: The Bail Act, 1976, emphasizes the presumption in favor of bail and requires reasons for denial. Conditions can be imposed, but refusal must be justified.[9]
2. United States: The Bail Reform Act, 1984, sought to reduce reliance on cash bail and promote pretrial release based on risk assessment. Yet, debates around racial and class bias remain.[10]
India can learn from these models by prioritizing non-monetary bail conditions and emphasizing risk-based assessments rather than financial sureties.
V. Recent Reforms and Policy Proposals
The Law Commission of India in its 268th and 277th reports stressed the need for comprehensive bail reform.[11] Recommendations included adopting a presumption in favor of bail, reducing reliance on monetary bonds, and introducing statutory guidelines for judges.
The BNSS 2023 has made only limited modifications to bail provisions, falling short of addressing systemic inequities. Policy proposals include:
– Time-bound bail hearings.
– Use of technology for remote hearings.
– Presumption of bail for minor offences.
– Clear statutory guidelines limiting judicial discretion.
VI. Balancing Liberty and Justice
The ultimate challenge lies in balancing the constitutional mandate of liberty with the legitimate concerns of society. Unregulated bail can endanger witnesses and victims, while excessive denial undermines liberty and equality.
A rights-based approach requires:
– Strengthening victim protection mechanisms.
– Prioritizing community-based monitoring over incarceration.
– Judicial training to ensure uniformity in bail decisions.
– Incorporating empirical data to shape bail policy.
Conclusion
Bail reforms in India are not merely procedural but foundational to the promise of justice. As the Supreme Court has reiterated, ‘bail is the rule and jail is the exception.’ Yet, without systemic reform, undertrials will continue to suffer in prisons due to poverty, delay, and discretion.
Meaningful reforms require a shift towards a presumption of bail, consistent judicial guidelines, and technology-enabled processes. By embracing these changes, India can better harmonize the competing imperatives of liberty and justice in its criminal process.
References
[1] National Crime Records Bureau, Prison Statistics India 2021.
[2] INDIA CONST. Art. 21.
[3] Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81.
[4] Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565.
[5] Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240.
[6] Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
[7] Satender Kumar Antil v. CBI, (2022) 10 SCC 51.
[8] NCRB, Prison Statistics India 2021.
[9] Bail Act 1976, c.63 (UK).
[10] Bail Reform Act of 1984, 18 U.S.C. §§ 3141–3156 (USA).
[11] Law Commission of India, 268th Report: Amendments to Criminal Procedure Code, 1973 – Provisions Relating to Bail (2017).
