SYSTEM OF BAIL IN INDIA: CHALLENGES, WAY FORWARD

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Picture Courtesy:  Time of India

Context

The Indian bail system is framed around the principle of "bail, not jail" but faces major challenges, including disproportionate detention of the poor, judicial discretion that leans towards denial, and delays that keep undertrials in overcrowded prisons.

What is Bail?

It is the temporary release of a person from legal custody, in exchange for a promise to appear in court for future proceedings.

It ensures that personal liberty, guaranteed by Article 21 of the Constitution, is not arbitrarily curtailed before conviction.

Section 2(1)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) defines bail as the release of an accused person from custody under specific conditions, upon executing a bond or bail bond.

Bail Mechanisms:

Bond: An accused signs a bond, agreeing to bail terms and assuring court presence.

• It includes a cash deposit, with the amount determined by the crime's nature and the accused's economic status.
• The deposit is forfeited if bail conditions are violated, but refunded upon trial conclusion.
• If an accused cannot afford the cash, courts may consider releasing them on a Personal Recognisance (PR) bond, requiring them to arrange the cash within a specific period after release.

Bail Bond (Surety): Another person provides a surety, along with a specified payment, assuring the court that the accused will abide by bail conditions.

Types of Bail

Criminal law outlines various types of bail under the Code of Criminal Procedure, 1973 (CrPC), and now replaced by the BNSS, 2023.

Bail in Bailable Offences: Section 478 of BNSS establishes a mandatory right to bail for bailable offences.

• Court can refuse bail if the accused previously violated bail conditions.

Bail in Non-Bailable Offences: Section 480 of BNSS governs bail in non-bailable offences, granting discretionary power to courts and police officers.

• Exceptions allow for vulnerable categories such as persons under 16 years, women, or those who are sick.

Anticipatory Bail: Section 482 of BNSS introduces anticipatory bail, allowing a person to seek bail before arrest for a non-bailable offence, except in specific sexual offences.

Default Bail (Statutory Bail): Legal right that entitles an accused person to be released from custody if the investigating agency fails to file a chargesheet within the legally specified period.

Interim Bail: Courts grant it temporarily while regular or anticipatory bail applications are pending.  

Bail to Undertrial Prisoners: Section 479 of BNSS mandates the release of an undertrial prisoner on a personal bond if they have been detained for a period extending to one-half of the maximum sentence for the offence.

• First-time offenders must be released on bond if they have undergone detention for one-third of the maximum period of imprisonment.

Bail can be cancelled if the accused:

Misuses their liberty

Interferes with the investigation

Tampers with evidence

Threatens witnesses

Violates the conditions of the bail bond

Commits additional crimes or offenses while on bail

Judicial Interpretation related to Bail  

Supreme Court stated the principle "bail is the rule, jail is the exception" in the State of Rajasthan vs Balchand alias Baliya Case (1977).

In Arnesh Kumar vs State of Bihar (2014), Supreme court issued binding directions for mandating preliminary inquiries, recording reasons for arrest, to curb Arbitrary arrests.

In Nikesh Tarachand Shah vs Union of India (2017), the Court struck down Section 45 of the PMLA, finding its restrictive twin conditions for bail discriminatory and arbitrary, violating Articles 14 and 21 of the Constitution.

Sushila Aggarwal vs State (NCT of Delhi) (2018) held that anticipatory bail orders should not be time-bound and can extend until trial conclusion.

Supreme Court, in Policy Strategy for Grant of Bail, In re (2024), directed expedited disposal of bail applications and intervention by Legal Services Authorities to assist undertrials unable to furnish bail, noting that monetary surety should not be a barrier to liberty.

Devinder Kumar Bansal vs State of Punjab (2025) clarified that anticipatory bail is a discretionary power, not an integral part of Article 21.

Challenges in the Bail System in India

Prolonged Pre-Trial Detention: According to the India Justice Report (IJR) 2025, about 76% prisoners are undertrials, disproportionately affecting poor and marginalised communities who fail to meet bail conditions due to financial constraints.

• Law Commission (2017) report stated that granting or refusing bail based on monetary surety is "contrary to Constitutional ethos," leads to discrimination, and violates the fundamental right to a fair trial.
• In 2023, the Supreme Court issued guidelines directing jail superintendents to inform the District Legal Services Authority if an accused remains imprisoned for over a week after bail.

Arbitrary Use of Preventive Detention Laws: Laws like the National Security Act (NSA) and PMLA allow for detention without trial, for national security or public safety. These laws are criticised for a lack of judicial oversight.

Delay in the Judicial Process: Slow judicial process is a major contributor to prolonged pre-trial detention. Overburdened courts, lack of infrastructure, and inadequate legal resources extend cases for years.

• As of July 2025, over 4.6 crore cases pending in lower courts, more than 63 lakh cases in High Courts, and over 86,000 cases in the Supreme Court. (Source: Minister of Law and Justice) 

Lack of Uniformity in Granting Bail: Bail decision lies within the discretion of a judge, thus lack uniformity and consistency in decisions.   

Lack of Awareness and Legal Representation: Many accused persons lack knowledge of bail laws or the means to hire adequate legal representation.  

Misuse of Anticipatory Bail: Sometimes individuals from elite or political backgrounds misuse the right to anticipatory bail to protect themselves from arrest. (eg. Arnab Goswami late night hearing case 2020)

Way Forward

Review and limit the misuse of preventive detention laws. Introduce strict safeguards and mandate regular judicial review to prevent arbitrary detention.

Strengthen bail accessibility. Automatic bail for minor or non-violent offences. Courts should grant bail based on risk assessment rather than financial ability.

Establish clear bail guidelines. Ensure consistency and fairness in judicial discretion, with transparent and objective criteria for bail refusal.

Explore alternative forms of custody. These include house arrest, Open prisons, electronic monitoring, and bail with conditions, to reduce imprisonment.

Speed up the judicial process. Increase courts, introduce technology (AI, blockchain) to enhance management, and reduce case backlogs to minimise pre-trial detention periods.

Implement comprehensive bail legislation, draft a uniform and transparent process for granting or refusing bail, and codify current laws and practices, to align with constitutional principles of liberty, dignity, and presumption of innocence, while balancing victim rights and public safety. 

Source: Time of India