Published on: 22nd December, 2025
Authored by: Khushi Adyalkar
Indian Law Society Law College, Pune
Abstract
Bail is fundamental to criminal jurisprudence, upholding the presumption of innocence and protecting individual liberty by ensuring the accused is not unnecessarily detained before conviction. It serves to assure the accused’s presence at trial while allowing them to continue their normal life, which promotes a more efficient and humane justice system by reducing prison overcrowding and costs. Bail also facilitates a fair legal process, enabling the accused to prepare their defense effectively and preventing arbitrary deprivation of personal freedom. However, India’s judicial system contains many pending trials, leading to high numbers of undertrials, and discretionary powers granted in the name of bail are sometimes misused. Undertrials are individuals detained in prison while awaiting investigation, inquiry, or trial. The Prison Statistics India report of 2022, released by the National Crime Records Bureau and based on data furnished by the Prison Department of all 36 States/UTs for the calendar year January 1st to December 31st, states that above 75% of prisoners are undertrials.[1] This article examines essential bail laws and suggests reforms regarding those laws.
I. Introduction
“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.”[2]
The term ‘bail’ is derived from the French word ‘baillier’ which means ‘to give away or deliver.’ Bail is also defined as “the setting free of the defendant by releasing him from the custody of law and entrusting him to the custody of his sureties who are liable to produce him to appear for his trial at a specific date and time.”
According to Section 2(1)(b) of the BNSS, the term means “release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or court on execution by such person of a bond or bail bond.” This definition introduces two essential components: bail bond and bond. The term ‘bail bond’ means an undertaking with sureties for the release of an accused from custody, while the term ‘bond’ refers to a personal undertaking without sureties for the release of an accused from custody.
II. Constitutional Framework and the Right to Bail
The right to bail, as a facet of Article 21 of the Constitution of India, has evolved through statutory codification and judicial interpretation. The Code of Criminal Procedure, 1973 (CrPC), and now the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), codify procedural provisions regulating the arrest, detention, and release of accused persons.
Article 21 of the Constitution guarantees the right to life and personal liberty. Bail serves as a mechanism to ensure that this liberty is not arbitrarily curtailed prior to conviction. In Sanjay Chandra v. CBI,[3] the Supreme Court held that bail is not to be withheld as a punitive measure. Pre-trial detention, it emphasized, must be justified by necessity and not merely on apprehension or public pressure. The Supreme Court comprehensively elaborated on the fundamental objective of bail, emphasizing that its primary purpose is to ensure the accused’s appearance at trial, and not to serve as a form of punishment or preventive detention. The Court underlined that the deprivation of liberty must be treated as punishment only after a person is found guilty through due process, and until then, every accused is presumed innocent. Detention pending trial, unless absolutely necessary, causes undue hardship and contradicts the constitutional guarantee of personal liberty under Article 21. The Court stressed that “necessity” is the operative test for pre-trial custody, and that mere apprehensions, such as the belief that the accused might tamper with evidence or witnesses, should not justify denial of bail except in the most extraordinary circumstances. Furthermore, the Court cautioned against using pre-conviction imprisonment as a tool to express disapproval of the accused’s past conduct or to give a pre-trial taste of punishment. It was also observed that imprisonment before conviction inevitably carries a punitive character and should not be imposed to serve moral or deterrent ends. The judgment reaffirmed that bail decisions must be grounded in legal necessity alone, keeping in mind the presumption of innocence and the right to liberty until guilt is conclusively established.
In Kashmira Singh v. State of Punjab,[4] the Court highlighted that indefinite detention pending appeal violates Article 21. The modern legal understanding of bail thus reinforces that liberty must prevail unless compelling state interest mandates custody. The Hon’ble Court addressed the grave concern of individuals being incarcerated for prolonged periods, only to be eventually acquitted. Taking note of such situations, the Court emphasized that the right to bail is inherent in Article 21 and can only be denied through a procedure established by law.
Reaffirming this position, the Supreme Court in the recent case of Jalaluddin Khan v. Union of India[5] reiterated the principle that “bail is the rule and jail is the exception.” The Court sought to strike a balance between an individual’s right to personal liberty and the interests of criminal justice. Currently, the provisions relating to bail and bonds are codified under Chapter XXXV of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as the BNSS). This chapter comprehensively deals with various aspects of bail, including bail in bailable and non-bailable offences, the grant of bail to undertrial prisoners, and the execution of bonds.
III. The Crisis of Undertrials and Prison Overcrowding
More than 75% of India’s prison population are undertrials, while overcrowding in Indian prisons stands at 118%.[6] These stark realities constantly highlight the scale of crisis in India’s justice system. Recently, the Supreme Court emphasized the critical need for reform in the law related to bail and called on the government to consider framing special legislation on bail. Under the Code of Criminal Procedure, we have definite provisions that pertain to bail in various circumstances. The basic provisions for granting bail and bonds in bailable cases are Sections 436 and 450 of the Code of Criminal Procedure. Along with these sections, the CrPC also specifies a number of circumstances in which release on bail is permitted, including the right to release on bond if the investigation is not completed within the designated number of days.
IV. Judicial Protections for the Accused
In every democratic legal system, the judiciary functions as the bulwark between state authority and individual liberty. Accused persons are entitled to several legal protections stemming from constitutional rights, statutory provisions, and internationally recognized human rights instruments. These protections are not mere procedural formalities; they are crucial in ensuring that justice is not only done but seen to be done. Judicial intervention becomes particularly significant in criminal proceedings, where the coercive power of the state is at its zenith and the accused stands vulnerable to its misuse.
Presumption of Innocence
The presumption of innocence is a universally accepted legal principle and a key component of Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR). Indian courts have consistently reiterated this presumption. In State of U.P. v. Naresh,[7] the Supreme Court stressed the necessity of strict proof beyond reasonable doubt, reaffirming that the burden lies solely on the prosecution.
Right to Legal Aid and Fair Trial
In Khatri v. State of Bihar,[8] the Supreme Court held that free legal aid is an essential ingredient of a fair trial and flows from Article 21 of the Constitution. The Court also emphasized that the obligation to provide counsel arises not only during trial but at the stage of first appearance before a magistrate.
Protection Against Self-Incrimination
Article 20(3) of the Indian Constitution provides that no person accused of an offence shall be compelled to be a witness against themselves. In Selvi v. State of Karnataka,[9] the Supreme Court ruled that narco-analysis and polygraph tests conducted without consent violate Article 20(3).
Judicial Discretion in Bail Matters
The judiciary’s discretion in granting bail plays a crucial role in balancing personal liberty and public interest. In Gudikanti Narasimhulu v. Public Prosecutor,[10] Justice V.R. Krishna Iyer stated that “bail is the rule and jail the exception,” establishing the principle that personal liberty should not be curtailed unless necessary. Provisions under Sections 436–439 of CrPC govern bail procedures. Courts have expanded bail jurisprudence to include anticipatory bail under Section 438, especially in cases where arrests may be politically motivated or arbitrary.
Oversight of Investigation and Fair Prosecution
The judiciary ensures that investigations remain within constitutional limits and do not become tools of harassment. In Prakash Singh v. Union of India,[11] the Court issued directives for police reform to reduce political interference. In Zahira Habibullah Sheikh v. State of Gujarat,[12] the Supreme Court transferred the Best Bakery case to another state due to concerns of a biased trial. Under Section 482 of CrPC, courts possess inherent powers to quash proceedings to prevent abuse of process and secure the ends of justice.
Right to Speedy Trial
The right to a speedy trial has been recognized as a fundamental right under Article 21 in Hussainara Khatoon v. Home Secretary, State of Bihar.[13] The Court held that prolonged incarceration without trial violates constitutional guarantees and ordered the release of several undertrial prisoners. Delays in justice not only harm the accused but also undermine public confidence in the legal system. Judicial activism has helped in setting timelines and providing directions to fast-track courts for the disposal of cases.
The judiciary is the primary defender of the rights of the accused against excesses by the state, police, or prosecutorial overreach. Through constitutional interpretation, case law, and statutory oversight, courts ensure that accused individuals are treated fairly, with dignity and within the bounds of justice. As criminal law evolves in response to changing social and political landscapes, the judiciary must remain steadfast in upholding the presumption of innocence, the right to counsel, and procedural safeguards. In doing so, it sustains public trust in the legal system and fortifies the very foundation of democratic governance.
V. Historical Evolution of Bail Law in India
The bail law in India can be traced back to the colonial period, specifically the Criminal Procedure Code of 1898. Understanding this historical development is essential to explaining the complex aspects of India’s current bail law. The Criminal Procedure Code, 1973, is one of the most important documents defining the legal rules governing the grant of bail in India and applies to bailable cases across the country. Sections 436 to 450 of the CrPC define the rules of bail, covering bailable and non-bailable offences. Important opinions of the Supreme Court of India, such as Gudikanti Narasimhulu v. Public Prosecutor and State of Rajasthan v. Balchand, have broadened the interpretation and operation of bail law.
VI. Challenges in the Current Bail System
The Supreme Court in Satender Kumar Antil v. CBI[14] acknowledged the problems with the bail system and urged the government to enact a comprehensive Bail Act to streamline the grant of bail. The Supreme Court also stressed the dire situation of jails and discussed overcrowding of undertrial prisoners, constitutional concerns, and related issues.
1. Overrepresentation of Undertrials
A large number of undertrials continue to remain in prison despite being granted bail due to challenges in complying with bail conditions. Undertrials comprise over 75% of India’s prison population, which strongly reflects systemic inefficiencies in the bail system. Prison overcrowding in India stands at 118%.
2. Discrimination Against Disadvantaged Sections of Society
Arbitrary arrest is vague and based on the discretion of the police. Such vague justifications put migrants, persons without means, or those with no contact with family at higher risk of arrest because of their socio-economic condition. Data from the Fair Trial Program in Yerwada and Nagpur central prisons mentions that 18.50% of undertrials are migrants, 93.48% did not have any means, 62.22% did not have any contact with family, and 10% had a history of prior incarceration.[15]
3. Lack of Financial Resources
The inability to arrange for capital/property and local sureties are the most significant reasons accounting for an undertrial’s inability to comply with bail conditions. Data from the Fair Trial Programme (FTP) in Yerwada and Nagpur central prisons shows that of the undertrials (2,313) represented by the FTP, 18.50% were migrants, 93.48% did not have any means, 62.22% did not have any contact with family, and 10% had a history of prior incarceration. In nearly 35% of these cases, as per a study, it took over a month after receiving bail for undertrials to comply with bail conditions and secure their release.[16]
4. Prolonged Detention
The current system frequently leads to prolonged pre-trial detention, infringing upon the principle of “innocent until proven guilty.”
5. Systemic Discrimination
Marginalized communities and economically weaker individuals frequently face bias in bail decisions, exacerbating social inequalities.
6. Judicial Backlog
Overburdened courts contribute to delays in bail hearings, resulting in unnecessary detention and hindering the judicial process.
7. Lack of Reasoned Orders
Despite existing guidelines, courts do not consistently record reasons for rejecting bail. The rationale behind how courts factor in offence-based and person-based considerations in deciding bail applications remains unclear.
VII. Conclusion
Bail is a cornerstone of criminal jurisprudence, protecting liberty while ensuring justice. Yet, India’s bail system suffers from delays, overcrowding, and inequality, disproportionately impacting marginalized communities. Effective reforms, including a comprehensive Bail Act and simplified procedures, are urgently needed to make “bail the rule and jail the exception” a reality. The judiciary’s continued vigilance in upholding constitutional protections, combined with legislative intervention to address systemic challenges, will be essential in creating a bail system that truly balances individual liberty with the imperatives of justice.
References
[1] Prison Statistics India 2022, National Crime Records Bureau, Ministry of Home Affairs, Government of India
[2] Justice V.R. Krishna Iyer (quoted in various bail jurisprudence decisions).
[3] Sanjay Chandra v. CBI, (2012) 1 SCC 40
[4] Kashmira Singh v. State of Punjab, AIR 1977 SC 2147Â
[5] Jalaluddin Khan v. Union of India, (2024) 8 S.C.R. 633Â
[6] Prison Statistics India 2022, supra note 1.
[7] State of U.P. v. Naresh, (2011) 4 SCC 324Â
[8] Khatri v. State of Bihar, AIR 1981 SC 928Â
[9] Selvi v. State of Karnataka, (2010) 7 SCC 263Â
[10] Gudikanti Narasimhulu v. Public Prosecutor, AIR 1978 SC 429Â
[11] Prakash Singh v. Union of India, (2006) 8 SCC 1Â
[12] Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374Â
[13] Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1369Â
[14] Satender Kumar Antil v. CBI, Supreme Court of India (2022) 10 SCC 51
[15] Fair Trial Program data, Yerwada and Nagpur Central Prisons
[16] Id.
