Published On: December 12th 2025
Authored By: Rishabh Jain
Law Centre - 2, Faculty of Law, University of Delhi
Abstract
Bail reform in India is a critical step toward ensuring the constitutional right to liberty while maintaining public interest and justice. Recent legislative changes, particularly the Bharatiya Nyaya Sanhita, 2023, along with key Supreme Court judgments, aim to remedy outdated procedures and reduce the massive undertrial population. This article explores the historical context, recent reforms, judicial pronouncements, challenges, and future recommendations for a balanced bail system in India.[1]
Introduction
The right to bail is rooted in the Indian Constitution, particularly Articles 21 and 22, which guarantee liberty and protection against arbitrary detention.[2] However, India’s criminal justice system has long grappled with procedural ambiguities and socio-economic barriers that deny many accused persons timely bail, contributing to overcrowded prisons primarily filled with undertrial prisoners.[3] Recent reforms emphasize bail as the rule and jail the exception, seeking to uphold the fundamental rights of the accused while safeguarding justice and public order.[4]
Historical Evolution of Bail in India
Bail as a legal institution in India developed from common law principles, codified in the Code of Criminal Procedure, 1973 (“CrPC”).[5] Landmark judicial rulings, such as State of Rajasthan v. Balchand alias Baliya,[6] established bail as a matter of right except in capital offenses. However, the discretionary nature of bail combined with uneven judicial and executive practices has historically led to prolonged pretrial detention.[7]
Recent Legislative Initiatives: The Bharatiya Nyaya Sanhita, 2023
The Bharatiya Nyaya Sanhita (“BNS”), enacted in 2023, replaces relevant CrPC provisions concerning bail. The BNS adopts more prescriptive provisions, granting bail to first-time offenders, juveniles, and vulnerable groups after serving one-third of their potential sentence, except in cases involving death or life imprisonment.[8] It mandates speedier disposal of bail applications and introduces technological reforms for managing bail records and surety verification.[9] This legislation aims to reduce India’s massive undertrial population, which constitutes more than 75% of all prison inmates.[10]
Judicial Pronouncements and Their Impact
The Supreme Court’s ruling in Satender Kumar Antil v. CBI[11] reaffirmed the principle that bail is the norm and jail the exception. The Court emphasized compliance with Sections 41 and 41A CrPC, requiring arresting authorities to provide reasons and mandating timely bail hearings to prevent unwarranted custody.[12] Other crucial cases, such as Rakesh Kumar Paul v. State of Assam[13] and Arnesh Kumar v. State of Bihar,[14] strengthen the right to default bail and limit judicial discretion in denying bail without justification.[15]
Challenges in India’s Bail System
India’s current bail system faces various challenges. The large undertrial population is emblematic of systemic delays and socio-economic barriers; many accused cannot meet bail conditions due to poverty or lack of assets.[16] Judicial discretion and inconsistent bail grant criteria lead to arbitrary rejections, prolonging pretrial detention.[17] Overcrowded prisons, with occupancy rates exceeding 118%, raise human rights concerns and question the justice system’s fairness.[18] Furthermore, many detainees lack effective legal support, exacerbating inequalities within the system.[19]
Comparative Global Perspective and Lessons for India
Countries such as the United Kingdom and the United States have statutory frameworks that regulate bail comprehensively, emphasizing risk assessment and alternatives to monetary sureties to mitigate unnecessary detention.[20]India’s reform efforts through BNS and judicial activism borrow from these models but require strengthened implementation mechanisms, judicial training, and infrastructural support to realize comparable success.[21]
Recommendations for Reform
A standalone Bail Act is recommended to codify uniform bail procedures and standards across India.[22] It should include clear timelines for disposing of bail applications, alternative surety mechanisms, and measures promoting transparency through digitized records.[23] Judicial and police personnel must receive mandatory training on bail laws, and legal aid services should be expanded for vulnerable groups like women, juveniles, and the indigent.[24] Real-time monitoring and data collection on bail grants and denials can facilitate evidence-based policymaking and judicial accountability.[25]0
Conclusion
India’s bail reforms indicate a significant shift towards protecting individual liberty while balancing public safety concerns. The legislative and judicial changes underscore bail as a fundamental right, yet effective implementation remains a challenge. Continued legal, administrative, and policy reforms, alongside technological integration and awareness, are essential to realize the constitutional mandate fully. Ensuring bail as the default will reduce overcrowding, safeguard human rights, and reinforce trust in the criminal justice system.[26]
References
1 See Ministry of Law and Justice, Bharatiya Nyaya Sanhita, 2023 (Act No. XX of 2023).
2 The Constitution of India, Articles 21 and 22.
3 Ministry of Home Affairs, Prison Statistics India Report 2024, National Crime Records Bureau, Government of India.
4 Supreme Court of India, Satender Kumar Antil v. CBI, (2023) 10 SCC 51.
5 Code of Criminal Procedure, 1973, No. 2 of 1974 (India).
6 State of Rajasthan v. Balchand alias Baliya, AIR 1977 SC 2447.
7 Law Commission of India, 239th Report on Bail Reform, 2022.
8 Bharatiya Nyaya Sanhita, Sections XX-XX (2023).
9 Ministry of Home Affairs, Digital Initiatives in Criminal Justice, 2025.
10 National Crime Records Bureau, Prison Statistics India 2024.
11 Satender Kumar Antil v. CBI, (2023) 10 SCC 51.
12 Ibid.
13 Rakesh Kumar Paul v. State of Assam, (2017) 10 SCC 541.
14 Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
15 Supreme Court of India, Various rulings on bail jurisprudence 2014-2024.
16 National Crime Records Bureau, Prison Statistics India 2024.
17 Law Commission of India, 239th Report on Bail Reform.
18 National Crime Records Bureau, Prison Statistics India 2024.
19 Legal Aid Services Authorities Act, 1987 (India).
20 United Kingdom Bail Act 1976; United States Bail Reform Act of 1984.
21 Law Commission of India, Comparative Study on Bail, 2023.
22 Supreme Court of India, Recommendations on Bail Reform, 2024.
23 Ministry of Law and Justice, Proposals for a Bail Act, 2025.
24 Legal Services Authorities Reports, 2023-2025.
25 Oversight Committee on Bail Statistics, 2024 Annual Report.
26 Supreme Court of India, Satender Kumar Antil (n 4).
