Introduction
Bail is one of the most important yet misunderstood aspects of criminal law. In India, it has long been said that “bail is the rule, jail is the exception,” reflecting the idea that a person accused of a crime is presumed innocent until proven guilty. Yet, every year, thousands of undertrial prisoners remain behind bars for months—sometimes years—before their cases even reach trial. Recent cases, including prolonged pre-trial detentions under stringent laws like the UAPA, NDPS Act, and PMLA, have intensified the debate around bail reforms in India.
In the last few years, the Supreme Court has repeatedly criticised excessive arrests and unnecessary incarceration, calling the situation a “grave violation of personal liberty.” With discussions on bail reform gaining momentum, this article explores the history, challenges, recent judicial interventions, and potential pathways for a fairer bail system in India.
What is Bail and Why Is It Important?
Bail allows an accused person to be released from custody while their trial is ongoing. It protects individual liberty, prevents overcrowding in prisons, and ensures that a person is not punished before conviction. The bail system must balance two competing interests:
- the rights of the accused, and
- the interest of society and victims.
If the system leans too heavily in either direction, it becomes unfair. India’s struggle lies in finding this balance.
Constitutional Foundation of Bail
Article 21 of the Constitution guarantees the right to life and personal liberty. The Supreme Court has repeatedly linked bail to this fundamental right. In cases like Hussainara Khatoon v. State of Bihar (1979), the Court observed that thousands of undertrial prisoners were languishing in jails simply because they could not afford bail. This case marked the beginning of judicial activism in bail jurisprudence.
The principle is straightforward: no one should lose liberty unless absolutely necessary.
The Problem of Overcrowded Prisons
India’s prisons are overcrowded by nearly 130% in some states. According to official data:
- More than 77% of prisoners are undertrials, not convicts.
- Many are charged with minor offences.
- A significant number are in jail simply because they cannot furnish bail bonds or sureties.
This creates a vicious cycle where poverty becomes a reason for imprisonment.
Misuse of Arrest Powers
The Code of Criminal Procedure (CrPC) gives police wide discretion in making arrests. But the Supreme Court has noted that police often arrest people unnecessarily, even when the offence is minor or the accused is not a flight risk.
In Arnesh Kumar v. State of Bihar (2014), the Court laid down strict guidelines against unnecessary arrests, especially for offences punishable with less than seven years imprisonment. Despite this, arrests continue to be misused as a tool of harassment.
This misuse directly contributes to bail denials and overcrowded prisons.
Special Laws and the Stringency Problem
Certain laws in India make bail extremely difficult:
a. UAPA (Unlawful Activities Prevention Act)
Bail requires courts to believe that accusations are prima facie untrue, which places a very heavy burden on the accused.
b. NDPS Act
For commercial quantities, courts must be satisfied that the accused is “not guilty”—a nearly impossible standard during investigation.
c. PMLA (Prevention of Money Laundering Act)
The twin conditions for bail require proving innocence even before trial begins.
d. SC/ST Prevention of Atrocities Act
While essential for protecting vulnerable communities, the law contains presumptions that make bail more complex.
These special acts reflect the tension between civil liberties and the need to address serious crimes. However, critics argue that the stringent bail requirements often result in pre-trial punishment, especially when cases take years to conclude.
Recent Supreme Court Interventions
The judiciary has made several significant rulings attempting to reform the bail process:
a. Satender Kumar Antil v. CBI (2022)
The Supreme Court issued comprehensive guidelines to reduce unnecessary arrests and ensure bail is considered fairly. The Court observed that “jail is the exception, not the rule,” and emphasised that personal liberty should not be casually taken away.
b. Arnab Goswami Case (2020)
The Court held that bail should be granted generously when accusations appear politically motivated or frivolous.
c. Court’s Stand on Default Bail
The Court has repeatedly stressed that default bail is an “indefeasible right,” meaning the accused must be released if the investigation is not completed within the statutory time.
d. Bail for People with Long Incarceration
In several cases, including terrorism and sedition charges, the Court has granted bail noting that prolonged undertrial detention cannot override constitutional liberty.
These decisions show the judiciary’s strong stance on protecting personal freedom.
CrPC Reform and the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
With the introduction of the BNSS, which replaces the CrPC, India is undergoing a major overhaul of criminal procedure. Some provisions affect bail directly:
- Emphasis on electronic communication of summons and warrants.
- Strict timelines for investigation.
- More clarity on the grounds of arrest.
- Provisions encouraging the use of technology.
However, critics argue that the reforms still do not adequately address the core issue of arrest misuse and delays in bail hearings.
Challenges in the Current Bail System
Despite legal reforms, many systemic challenges remain:
- Delay in Bail Hearings
Courts are overburdened, leading to bail applications taking weeks or months to be heard.
b. Socio-economic Inequality
Wealthier accused can hire good lawyers and furnish bail bonds; the poor remain trapped.
c. Lack of Legal Awareness
Many undertrial prisoners do not know their rights and remain silent or helpless.
d. Police Culture
Arrest is often seen as the default action rather than the last resort.
e. Political and Media Pressure
In high-profile cases, the pressure to be “tough on crime” can influence bail decisions.
f. Stringent Special Laws
Special statutes create layers of conditions that make bail nearly impossible in certain offences.
The Way Forward: Recommendations for Reform
a. Clear Legislative Standards for Arrest
Arrest should be made only when:
- The accused is a flight risk,
- The accused can tamper with evidence,
- The accused may intimidate witnesses,
- The offence is extremely serious.
b. Mandatory Bail for Minor Offences
For offences punishable with less than three years imprisonment, courts should grant bail by default.
c. Bail Without Sureties
Many countries allow personal bonds without requiring money. India could adopt this model to help the poor.
d. Fast-Track Bail Courts
Special courts for bail hearings could reduce delays significantly.
e. Periodic Review of Undertrial Cases
Every prison must conduct monthly reviews to identify prisoners eligible for release.
f. Reform of Special Law
Stringent bail conditions must be reconsidered to prevent misuse.
g. Use of Technology
Video hearings, electronic tracking (where appropriate), and digital case management can expedite the process.
h. Legal Aid Strengthening
The Legal Services Authorities must be empowered to ensure every undertrial has legal representation.
Conclusion
Bail reform is not just a legal issue—it is a human rights issue. India’s overcrowded prisons, long pre-trial detentions, and systemic inequalities undermine the constitutional promise of liberty. While the judiciary has taken meaningful steps, legislative reforms and institutional changes are necessary to create a fair, efficient, and rights-respecting bail system.
A just society cannot imprison people unnecessarily. As India moves forward with criminal law reforms, bail must remain at the centre of the conversation—because true justice begins with liberty.
Contributed by: Lalit (Intern)