Bail Reforms in India: Balancing Liberty and Justice

Published On: December 3rd 2025

Authored By: Parvati Nair

NMIMS KPMSOL

Introduction

In India, the right to bail is derived from a constitutional guarantee of the right to life and personal liberty through Article 21 of the Constitution. The Supreme Court has stated over and over again bail is the rule and jail is the exception^[1], and emphasized the criminal justice system should operate from a premise of liberty. Sadly, because of chronic inaction and reliance on a more strict arrest regime, India’s prisons are filled with undertrials for far too long^[2]. However, recently, the Supreme Court, and participants in our justice system, have begun initiatives to change bail laws and procedures in order to strike the right balance between the individual’s liberty and the demands of our public justice system.

Bail in India

Under the provisions of the Criminal Procedure Code (CrPC), a person charged with a criminal offense has the right to bail, subject to specific notifications given the nature of the charge. If the charge is bailable, the person is entitled to be released on bail by providing the statutory bail bond. If the charge is not bailable, the court may take into account different factors in exercising its discretion to grant bail to the accused. Such circumstances include the nature of the charges, the accused person’s previous history, and whether the accused person is a flight risk or tampering with witnesses. Further to this, courts have injected the protections of article 21 into the bail jurisdiction. A deprivation of liberty which involves failing to provide the accused with any reasons for the pretrial detention or jail time for an unspecified period of time, is a deprivation of liberty which is not in conformity with the law. Furthermore, under section 167(2) of the CrPC, there is a statutory right to default bail if the investigation is not completed within the time specified by the law. This right has been acknowledged by the Supreme Court even during unusual circumstances, for example a pandemic. Additionally, in the case of Satender Kumar Antil v. CBI (2022), the court reinforced this framework, noting that jails in India are “flooded with undertrial prisoners,” and characterizing arrest as a “draconian measure” when other alternatives are available to respond to the complaints and charges.

Judicial History of Bail in India

Jail Decongestion and Scheduling Bail: In what could only be called a momentous ruling, Satender Kumar Antil v. CBI (2022) reiterated the undeniable fact that Indian jails are filled with poor, illiterate underspenders who “may not even deserve to be arrested” for minor offences.
Bail in Exceptional Circumstances^[3]: COVID-19 has inspired innovative bail relief measures; in In re: Contagion of COVID-19 Virus in Prisons (Mar. 2020), the Supreme Court suo motu ordered all the States/UTs to establish high-powered committees to designate classes of prisoners who could be eligible for release on bail, parole and leave.
Long-Term Detainees and Convicts^[4]: In Sonadhar v. State of Chhattisgarh (2022), the Supreme Court provided a reformative lens of long-term confinement. The Court said that lifers who have spent 10 years in confinement (with appeals pending) are entitled to bail “in the absence of any compelling circumstances.”

Reformative Policies

Even though there was no new bail legislation fully passed by the legislature from 2019-2023, it is worthwhile to mention several legislative and policy measures. First, the 268th Report of the Law Commission (2017) (in 2019) found that the existing bail legislation was “inadequate and inefficient for the purposes which the legislation was intended to accomplish”. It thus suggested liberalisation of Sections 436-439 CrPC and taking a more lenient view on defaults on sureties. Similarly, the Supreme Court agreed with these points expressed by the Law Commission and in Antil formally invited the Union Government to draft legislation on bail patterned after similar liberal statutes in foreign jurisdictions.

On the policy front, the Union Government passed the “Support to Poor Prisoners Scheme”^[5] (2023) which provides from FY 2023-24 annual appropriation of ₹20 crores to reimburse bail bonds and fines for poor prisoners.

On the state court level, more than a handful of trial courts across the country made some early steps towards relaxing the Surety requirements for bail, and have somewhat liberally been using Section 436A (“half-sentence”) to dismiss minor charges; these are reforms and very piecemeal^[6].

International Perspective

United Kingdom^[7]: England and Wales have a statutory presumption in favor of bail, which is unequivocally stated in the Bail Act 1976, which states a person should not be deprived of their liberty unless it is necessary in the interests of justice or to protect the public, and remand (pretrial detention) should be a measure of last resort, where the particular risks (absconding, reoffending, threatening witnesses) cannot be mitigated by conditions.

United States^[8]: The U.S. Constitution (Eighth Amendment) prohibits excessive bail but does not outline a right to bail. The Supreme Court held that bail must not be set in an amount which is not “reasonably calculated” to assure an accused presence in court.

Conclusion

Since 2019 at least, India’s bail jurisprudence has taken a distinct turn toward “liberty – first” influence. Courts and policymakers alike have accepted that we can rest comfortably knowing justice is being served when bail is decided in a timely fashion, the conditions for bail seem reasonable, and bail is provided to an individual wrongfully detained. The Supreme Court of India in cases including Satender Kumar Antil, further reiterated that personal liberty, like punishment, has a fundamental place in the administration of justice under Article 21. Simultaneously, reformers have suggested that personal liberty and public interest in safety, and the right to a speedy trial should co-exist. Just as Indian bail practices are changing, so are discussions in the United Kingdom and United States – with some nuance based on their systems. Of course, the aim is the same – a bail program that starts with the presumption of release, case-specific conditions focused on moderated identified risk, and updates for individuals that use financial ability to pay as a discriminator. As we move deeper into the 21st century, India’s continued evolution in rethinking bail processes offer a significant opportunity to ensure that liberty and justice scales remain balanced.