Bail Reforms in India: Balancing Liberty and Justice

Abstract

Bail occupies a pivotal role in India’s criminal justice system, situated at the intersection of the accused’s right to liberty and the State’s interest in ensuring justice. While the Constitution of India guarantees the right to life and personal liberty under Article 21, the reality is starkly different nearly three-fourths of India’s prison population comprises undertrial prisoners, many of whom remain incarcerated due to systemic flaws in bail procedures. The jurisprudence on bail, developed through landmark judgments such as State of Rajasthan v. Balchand, Hussainara Khatoon v. State of Bihar, and Satender Kumar Antil v. CBI, has consistently emphasized that “bail is the rule and jail is the exception.” However, the practical application of this principle has been marred by economic inequalities, judicial inconsistencies, and procedural delays. 

This paper critically examines the evolution and current challenges of bail in India under the Code of Criminal Procedure, 1973 (CrPC), recently replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). It explores constitutional foundations, judicial interpretations, empirical realities, and comparative perspectives from the United Kingdom and United States. The paper also assesses the impact of special legislations such as UAPA, NDPS, and PMLA, which impose stringent bail restrictions. 

The article argues that meaningful bail reform requires a balance between safeguarding individual liberty and protecting societal interests. Recommendations include uniform bail guidelines, wider adoption of non-monetary bail options, strengthening of legal aid, and speedy trial mechanisms. Ultimately, a reformed bail system must transform bail from a privilege into a right, thereby aligning India’s criminal justice framework with constitutional and international human rights standards. 

Introduction

Bail jurisprudence in India has long stood at the crossroads of two competing interests: the individual’s right to liberty and the State’s duty to ensure justice. Article 21 of the Constitution of India guarantees that no person shall be deprived of life or personal liberty except according to procedure established by law. Yet, the functioning of bail laws reveals systemic inequalities—those with resources secure release, while the poor languish in jails as undertrials. 

According to the Prison Statistics India 2022 released by the National Crime Records Bureau (NCRB), nearly 76% of the prison population comprises undertrial prisoners[1]. This stark figure underscores the urgent need for reform in India’s bail system, which often operates less as a presumption of liberty and more as a privilege accessible only to a few. 

The Supreme Court has frequently reiterated the principle that “bail is the rule, jail is the exception.”[State of Rajasthan v. Balchand][2]. Yet, in practice, denial of bail remains more common than its grant. This article critically analyses the legal framework, judicial interpretation, systemic challenges, and reformative proposals relating to bail in India, with a view to balancing liberty and justice.  

Concept and Legal Framework of Bail in India 

The Code of Criminal Procedure, 1973 (CrPC) recently replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides the statutory framework for bail in India. Though the term “bail” is not expressly defined, both statutes provide for its grant under various provisions. 

Types of Bail (with new BNSS references): 

1. Regular Bail: Sections 436–439 CrPC (now Ss. 479–482 BNSS) provide for bail during investigation or trial. 
2. Anticipatory Bail: Section 438 CrPC (now S. 482 BNSS)allows a person to seek bail in anticipation of arrest.
3. Default Bail: Section 167(2) CrPC (now S. 187(3) BNSS)grants bail where the police fail to file charge-sheet within prescribed time (60 or 90 days). 

Constitutional Basis: Bail is intrinsically linked to Articles 14 (equality before law), 19 (freedom of movement), and 21 (personal liberty). The presumption of innocence, though not expressly stated, forms a cornerstone of Indian criminal law. 

In Gudikanti Narasimhulu v. Public Prosecutor, the Supreme Court highlighted that bail involves a “delicate balance” between the rights of the accused and the interests of society.[3] 

Judicial Approach and Key Precedents 

 Over the decades, Indian courts have shaped the jurisprudence of bail: 

• “Bail not jail” principle: In State of Rajasthan v. Balchand, Justice Krishna Iyer articulated that deprivation of liberty before conviction should be exceptional[2] 
• Socio-economic sensitivity: In Moti Ram v. State of M.P., the Court criticized onerous bail conditions, observing that financial requirements should not defeat the purpose of bail for the poor[4] 
• Undertrial justice: In Hussainara Khatoon v. State of Bihar, the Court condemned the prolonged incarceration of undertrials and linked speedy trial to Article 21[5]
• Arrest safeguards: In Arnesh Kumar v. State of Bihar, the Court directed police to avoid unnecessary arrests in offences punishable with less than seven years, recognizing bail as a rule[6] 
• Recent standardization: In Satender Kumar Antil v. CBI, the Supreme Court (2022) issued detailed guidelines to ensure consistency and liberal grant of bail, urging lower courts to avoid mechanical rejection[7] 

These precedents establish liberty as the default rule, though implementation remains uneven.

Problems in the Current Bail System 

Despite progressive judicial pronouncements, the ground reality of bail in India remains grim. 

1. Overcrowded Prisons: With three-fourths of inmates being undertrials, bail is evidently not functioning as intended.  
2. Economic Inequality: The poor cannot furnish sureties or monetary bonds. In contrast, affluent accused often secure anticipatory or interim bail. 
3. Judicial Inconsistency: Discretionary decisions vary significantly across courts, leading to unpredictability.
4. Procedural Delays: Even when bail is granted, delays in processing release orders keep prisoners behind bars.
5. Stringent Special Laws: Statutes such as the Unlawful Activities (Prevention) Act (UAPA), Narcotic Drugs and Psychotropic Substances Act (NDPS), and Prevention of Money Laundering Act (PMLA) impose stringent bail conditions, often leading to prolonged pre-trial detention. 

The Law Commission of India, 268th Report (2017) noted systemic flaws in the bail regime under the CrPC. While the BNSS (2023) has retained most bail provisions with slight renumbering, the substantive challenges arbitrariness, delay, and socio-economic inequality remain largely unaddressed.[8] 

Recent Developments 

The judiciary has shown increasing concern regarding bail. In Satender Kumar Antil, the Supreme Court underscored that undertrial incarceration reflects “systemic failure” and called

for greater use of Section 436A CrPC (release of undertrials who have served half of the maximum sentence).[9] 

In Arnab Manoranjan Goswami v. State of Maharashtra, the Court (2020) emphasized that liberty is a constitutional value not to be sacrificed on the altar of political vendetta.[10] 

COVID-19 further accelerated reforms. Virtual bail hearings were conducted, and many states released undertrials on interim bail to reduce prison overcrowding, pursuant to directions of the 

Supreme Court in In Re: Contagion of COVID-19 Virus in Prisons (2020).[11] 

Comparative Perspective 

Looking abroad provides useful lessons: 

• United Kingdom: The Bail Act, 1976 creates a presumption in favor of bail, except for serious offences where risks of absconding or witness tampering are significant.  
• United States: The Bail Reform Act, 1984 allows preventive detention but has been criticized for reliance on monetary bail, disproportionately affecting marginalized groups. Several states have moved towards eliminating cash bail.  
• International Standards: The UN Human Rights Committee’s emphasizes that pre-trial detention should be the exception, not the rule.[12] 

India can draw from these models to adopt clearer legislative presumptions in favor of bail, while maintaining safeguards for serious crimes.  

Balancing Liberty and Justice 

The central dilemma lies in ensuring liberty without compromising justice. Unchecked liberty may embolden offenders to intimidate witnesses or flee, whereas indiscriminate denial of bail undermines human rights. 

The Supreme Court in Gudikanti Narasimhulu rightly emphasized that bail decisions should weigh both individual liberty and societal interest. This balancing requires case-specific analysis, but should not degenerate into arbitrary discretion.  

Recommendations for Reform  

1. Uniform Bail Guidelines: Enact statutory guidelines to standardize judicial discretion, building upon the Satender Kumar Antil ruling. 
2. Non-Monetary Bail Options: Replace surety requirements with personal bonds, community guarantees, or technological monitoring (like GPS anklets). 
3. Fast-Track Bail Courts: Dedicated benches for bail applications to reduce delays. 
4. Strengthened Legal Aid: Expansion of Legal Services Authorities to ensure representation for poor undertrials. 
5. Legislative Amendments: Amend CrPC to incorporate modern bail principles, including presumptions in favor of bail for minor offences. 
6. Periodic Judicial Review: f undertrial cases should be strengthened under Section 436A CrPC (now Section 479(4) BNSS). 

Conclusion 

Bail reforms are not merely a matter of criminal procedure they are central to India’s constitutional promise of liberty and equality. As long as undertrials constitute the overwhelming majority of prisoners, the presumption of innocence remains a hollow ideal. 

The Supreme Court has often reminded us that “liberty is the most precious of all human rights.”[Arnab Manoranjan Goswami v. State of Maharashtra], To translate this principle into practice, bail must shift from being a privilege to being recognized as a right, denied only in exceptional circumstances. Ultimately, meaningful bail reform must balance the scales protecting the individual from arbitrary incarceration while ensuring that justice is neither delayed nor denied. Only then can India truly claim to uphold the constitutional ethos of liberty and justice. 

References

1. National Crime Records Bureau, Prison Statistics India 2022 (Ministry of Home Affairs, Government of India) 
2. State of Rajasthan v Balchand (1977) 4 SCC 308 
3. Gudikanti Narasimhulu v Public Prosecutor (1978) 1 SCC 240 
4. Moti Ram v State of MP (1978) 4 SCC 47 
5. Hussainara Khatoon v State of Bihar (1979) 3 SCC 532 
6. Arnesh Kumar v State of Bihar (2014) 8 SCC 273 
7. Satender Kumar Antil v CBI 2022 SCC OnLine SC 825 
8. Law Commission of India, 268th Report on Amendments to Criminal Procedure Code, 1973 – Bail Reforms (2017) 
9. Satender Kumar Antil v CBI 2022 SCC OnLine SC 825 
10. Arnab Manoranjan Goswami v State of Maharashtra (2021) 2 SCC 427 
11. In Re: Contagion of COVID-19 Virus in Prisons 2020 SCC OnLine SC 343 
12. UN Human Rights Committee, General Comment No 35: Liberty and Security of Person (16 December 2014) CCPR/C/GC/35 
13. Code of Criminal Procedure 1973 (CrPC), repealed and replaced by the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), effective 1 July 2024 
14. Constitution of India, arts 14, 19, 21 
15. Unlawful Activities (Prevention) Act 1967 (UAPA) 
16. Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act) 
17. Prevention of Money Laundering Act 2002 (PMLA).