Author: Madireddy Divitha Reddy, Christ Academy Institute of Law, Bengaluru, Affiliated to Karnataka State Law University, Hubballi.

The concept of bail lies deeply in the constitutional promise of independence, which is an integral part of India's criminal jurisdiction. The Supreme Court of India has constantly emphasized that "bail is the rule, jail is the exception", underlining the importance of personal freedom even when a person is accused of crime. However, the grassroots reality of India's criminal justice system paints a different picture-over-service, due to prolonged prejudice, and systemic judicial delays continue to weaken this constitutional ideal. Bail jurisprudence, as currently stands, often struggles to create an effective balance among competitive interests of personal freedom.

In the context of recent debates about criminal law reforms, including the Indian Joint Code (BNS), 2023 and amendments, which is a pressure for the Criminal Procedure Code (CRPC), 1973 instead of the Indian Citizen Security Code (BNSS), 2023.

1. Undertrial congestion

According to the National Crime Records Bureau, India's more than 75% of prison population includes undertrial prisoners, and the prison capacity is more than 18% nationwide. In the beginning of 2023‑24, officials in Maharashtra began constructing additional barracks and partially chased bail reforms in jails.  (Singh, n.d.)

2. Judicial delays in bail

The analysis of 2010-2021 to 927,896 high court bail applications shows an average settlement time of 23 days, with some state High Courts (e.g. Jammu and Kashmir, Orissa, Bombay) 56 to 156 days average delays. It took a month to solve about 40% of these cases. Nevertheless, one month of delay means that there is a lack of freedom in waiting for the decision of the accused. (Mutt, 2023)

3. Refusal, discretion and delay in lower courts

The lower courts often deny bail due to crime, public or political pressure, or alleged gravity of the conservative judicial mindset. Social media focus in high SOF profile cases enhances pressure to deny bail, even where weak evidence exists.  (GANGAPURE, 2025)

In addition, procedural delay-case listing delays, crowded docks, frequent adjournment processing. Even after being granted bail, bureaucracy compliance issues (such as inability to present certainty, failure in bonding, court 'from court') prison interval release).  (bhatia, n.d.)

The right to personal freedom under Article 21 of the Constitution makes the basis of bail jurisprudence. Similarly, in the State of Rajasthan V. Balchand, Justice Krishna Iyer's now-famous dictatorship, "The original rule is bail, not jail," underlined bail as a security against arbitrary custody. However, constitutional guarantee often collides with ground realities: procedural complications, insufficient judicial infrastructure and socio-economic inequalities, leading to uneven access to bail.

BAIL SCENARIO IN INDIA

1. Detention and congested jails

According to the National Crime Records Bureau (NCRB) 2023, more than 75% of undertrial in India's prison population. Many of them have been detained for bailable offenses as they cannot do bail bonds. It raises questions of fairness and equality before law under Article 14.

2. Discretionary nature of bail decisions

While Section 436 of the CRPC granted bail as rights in bailable offenses, Section 437 and 439 leave the bail decisions on a large scale for judicial discretion in non-bailable cases. This conscience often causes inconsistent decisions and prolonged dislocation, especially affecting the marginalized communities.

3. Economic inequalities

Economically competent accused often quickly release safely, while poor are trapped due to inability to present or pay bail amount, as Moti Ram vs. State of M.P., where the Supreme Court held that bail conditions must not be excessive.

THE IMPACT ON SYSTEMIC DELAY AND BAIL

1. Judicial backlog

India faces a shocking backlog in more than 4.7 crore cases as 2024, with a significant ratio in criminal cases. Prolonged trials mean that accused individuals often spend more time than maximum punishment for their alleged crime in jail.

2. Delay

Police investigation often exceeds the statutory boundaries under Section 167 (2) CRPC, yet magistrates often hesitate to implement default bail provisions. Rakesh Kumar Paul vs. the State, the Supreme Court has said that in Assam default bail is a fundamental right, yet practical enforcement is weak.

3. Social and psychological influence

Extended chaos without punishment causes severe psychological crises, economic loss and stigma of the accused. It also reduces confidence in the criminal justice system, which is constitutionally bound to give timely justice.

1. "RE in RE: Strategy for Bail Grants"

In 2021, the Supreme Court launched a Suo Moto case in the RE strategy for bail, after the notorious "Sonadhar case". Sonadhar, who had served 14 years and was eligible for exemption, remained in jail due to administrative delay. The court directed the exemption and initial release of prisoners who served ten or more years and whose appeal was not adjacent; It released the state and broad folk adults and more than 1,600 before.  (Patnaik, 2023)

The court expanded the case to cover the undertrial prisoners trapped in jails despite bail orders. By the mid-2023, 5,380 undertrials were granted bail, but remained in custody. SC recommended the use of E 'Prison Portal to connect courts, jails and legal service officers. If the release is delayed beyond seven days, DLSA lawyers intervene.

2. Supreme Court review in 2025

In its mid-2025 review, the court accepted inconsistent application of bail jurisprudence. While the court worked rapidly in some interfaith marriages and witness cases, it maintained a zero-range tolerance on anticipatory bail in cases of economic crime. UAPA prisoners face excessive delays. In Aftab vs. Aftab vs. Uttar Pradesh's state, SC was compensated in 5 lakhs when a person spent 28 days in custody, he was still granted bail due to hypothetical delay in bail.  (Raaz, 2025)

3. Judicial Alarms on Bail Backlog

Justice Kaul said that about one -third of cases of the Supreme Court are cases of bail or exemption, warning that at the current pace, it may take 300–700 years to settle the backlog. He urged the government to "think outside the box" and avoid fighting every bail case through appeal.  (Rajagopal, 2023)

The Supreme Court's Satendra Kumar Antil vs. CBI guidelines emphasize non-invention in offenses with seven-year imprisonment and limited pre-examination custody. However, the implementation has been inconsistent due to awareness and lack of subordinate judiciary. Some states like Delhi and Maharashtra have used fast-track bail courts for fast bail applications, but require extensive institutional support and technical integration. The epidemic has increased digitization, resulting in online bail application and virtual hearing, but continuous investment in e-court projects is important to maintain these benefits.

The Indian Penal Code, enacted to replace 1860, is part of a comprehensive initiative to modernize India's criminal justice system with Indian Nyaya Sanhita, BNS, BNSS 2023. Attempts have been made through these new laws to address contemporary crimes such as criminal law and cyber-crime and terrorism, the bail provisions under the procedural law structure, to a large extent.

Critics argue that corrections recall the opportunity to address systemic bail issues, such as the socio-economic prejudice inherent in the undertrial detention and monetary bail systems for a long time. There is no provision for the risk-based release mechanisms or automatic bail in minor offenses after a certain period of pre-determination, despite the recommendations from the law commission of India (268th report) for a long time.

This has expressed concern that India can see uneven access to justice for crowded prisons, judicial delays and marginalized communities, without structural reforms for bail jurisprudence.

1. Codify bail guidelines

The uniform statutory guidelines recommended by the Law Commission of India's 268th Report (2017) should be implemented to limit judicial discretion and standardize the conditions of bail, avoiding arbitrary and inconsistent decisions in jurisdiction.

2. Non-modern bail promoting

Financial certainty can reduce non-modern bail terms, such as periodic police reporting, travel restrictions, community service obligations, or transfer to electronic surveillance, economic discrimination in bail decisions. In Moti Ram's case it was emphasized that the bail status for the socio-economic background of the accused should be appropriate and proportional, underlining the need for systemic options for monetary bail.

3. Apply Risk Evaluation Tool

Algorithm-based risk assessment with safety measures to prevent algorithm bias, can help judicial authorities determine the possibility of flight risk and the possibility of re-abusive and, align India with global best practices seen in courts such as the United States and Canada. However, these devices should be used carefully to prevent potential discrimination or misuse.

4. Strengthen legal aid

It is important to strengthen compulsory legal aid systems under Article 39A of the Constitution, to ensure timely and effective bail representation for economically weaker sections. The National Legal Services Authority (NALSA) and State Legal Services Authorities should actively deploy trained lawyers for bail cases and streamline representation procedures. 

5. Quick testing as a fundamental right

The courts should actively apply the principle that the speedy trial is an integral part of Article 21, as Hussainara Khatoon vs. Home Secretary, Bihar has been placed in the state and repeated in Kadara Pahadia vs. State of Bihar

India's bail jurisprudence, although is based in strong constitutional principles, suffers in practice due to procedural bottlenecks, judicial delays and socio-economic inequalities. Improvement in bail laws is not only about securing the release of individuals from custody, but this is also about restoring public confidence in the justice distribution system and ensuring that the constitutional promise of freedom under Article 21 and equality before law under Article 14 has been felt meaningfully.

By coding the same bail guidelines recommended by the Law Commission of India (268th Report), adopting the risk-based evaluation mechanisms to change more dependence on financial certainty, giving priority to systemic measures to reduce 4 more judicial backlogs, India can create a bail structure that balances personal freedom with the collective interest of justice. Such reforms will not only help in decongesting jails, but will reconfirm the basic principle emphasized by the Supreme Court that "bail is the rule and the jail is an exception."

• In re: Policy Strategy for Grant of Bail, Suo Motu Writ Petition (Crl.) No. 4 of 2021, (2021) S.C. (India).

• Satender Kumar Antil v. CBI, (2022) 10 SCC 51 (S.C. India).

• Aftab v. State of Uttar Pradesh, (2025) S.C. (India) (compensation awarded for delay in release).

• Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, Gazette of India, Extraordinary, Dec. 20–21, 2023 (India) (effective July 1, 2024).

• DAKSH, Analyses of High Court Bail Delays 2010–2021 (2021), https://www.dakshindia.org.

• Legal Service India, Bail Jurisprudence in India, https://www.legalserviceindia.com/legal/article-xxxxx-bail-jurisprudence-in-india.html (last visited Aug. 30, 2025).

• Jurists’ Junction, Cash Bail and Access to Justice, https://www.juristsjunction.in/article/cash-bail-access (last visited Aug. 30, 2025).

• IndiaSpend, Why Bail Remains a Distant Dream for India’s Undertrials, https://www.indiaspend.com/xxxxxx (last visited Aug. 30, 2025); see also various journal articles and commentaries analyzing bail practices, preventive detention laws (e.g., PSA), and systemic issues in pretrial incarceration.