Introduction – Setting the Context:
Bail is one of the most contested issues in Indian criminal law. It directly engages with Article 21 of the Constitution of India, which guarantees the right to life and personal liberty. The principle is simple yet profound: no individual should lose their liberty without due process of law.
For decades, the Code of Criminal Procedure, 1973 (CrPC) laid down the framework for granting or denying bail. However, with the introduction of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), bail jurisprudence in India enters a new phase. While many provisions mirror the CrPC, the changes are significant enough to warrant a fresh debate on how courts balance individual liberty with the demands of justice.
Types of Bail under Indian Law:
To understand bail, one must first distinguish its types:
- Regular Bail: Sought after an arrest, when the accused applies for release from custody during trial. For example, if someone is arrested on suspicion of theft, they may apply for regular bail.
- Anticipatory Bail: A unique provision allowing a person to seek protection before arrest if they fear being implicated in a case. For instance, in family or property disputes where allegations may arise, anticipatory bail acts as a safeguard against misuse of arrest powers.
- Interim Bail: Granted as temporary relief while the court considers a regular or anticipatory bail application. It ensures that the accused does not remain in custody unnecessarily pending a final hearing.
These categories highlight that bail is not about determining guilt but about ensuring liberty while the trial process unfolds.
The Principles Behind Grant of Bail:
The Supreme Court in State of Rajasthan vs. Balchand @ Baliay (1977) coined the enduring principle: “Bail is the rule, jail is the exception.” This doctrine underscores that the presumption of innocence must prevail until guilt is proven.
When deciding bail, courts weigh several factors:
- Nature and gravity of the offence.
- Likelihood of the accused absconding.
- Risk of tampering with evidence or influencing witnesses.
- Past criminal record of the accused.
However, in cases involving economic offences, terrorism, or heinous crimes, courts often adopt a stricter approach. This reflects the tension between safeguarding liberty and protecting public interest.
Key Changes under BNSS, 2023:
The BNSS, 2023, retains the broad framework of CrPC but introduces refinements. Bail-related provisions are largely contained in Sections 480–483 BNSS, corresponding to the earlier CrPC provisions.
Some notable aspects include:
- Electronic communication of bail orders, ensuring speedier transmission to police stations and prisons.
- Greater emphasis on timely investigation and charge-sheet filing, which directly impacts bail decisions.
- Attempts to streamline procedures to reduce delays in bail hearings.
Critics argue that many provisions are a mere renumbering exercise. Yet, even procedural clarifications—like digitised bail orders—may go a long way in preventing unnecessary incarceration.
Recent Judicial Trends:
The judiciary continues to refine bail jurisprudence through landmark rulings:
- The Supreme Court has emphasised speedy disposal of bail applications, recognising that prolonged custody undermines liberty.
- Anticipatory bail has been judicially expanded, though with caution, to prevent harassment and wrongful arrest.
- On the other hand, in special legislations like NDPS, UAPA, and PMLA, courts often adopt stringent standards, making bail exceptionally difficult. This reflects a clear divide between ordinary criminal law and laws dealing with national security or serious economic crimes.
The Supreme Court has repeatedly emphasised that liberty cannot be sacrificed to procedural delays:
- Pankaj Bansal vs. Union of India (2023) – The Court held that an arrest under PMLA without furnishing written grounds of arrest was illegal. This ruling reinforced the need for procedural safeguards even under stringent statutes.
- Manish Sisodia vs. Enforcement Directorate (2024) – The Court underlined that prolonged incarceration without trial violates Article 21, stressing that bail must be granted when trials are delayed beyond reason.
- Athar Parwez vs. Union of India (2024, UAPA case) – Bail was allowed on grounds of inordinate delay and weak evidence, reinforcing that fundamental rights cannot be suspended indefinitely under special statutes.
- Sarang Patharkar case (2025) – After nearly six years in custody without a conclusion of trial, the Court granted bail in a murder case, reiterating that “the right to speedy trial is inseparable from the right to liberty.”
These rulings collectively reaffirm that while national interest and victim protection matter, liberty remains the constitutional default.
Challenges in Bail Jurisprudence:
Despite constitutional safeguards, several challenges persist:
- Overcrowded prisons: A majority of India’s prison population comprises undertrial prisoners, many of whom await bail hearings.
- Judicial discretion: Different courts often adopt divergent approaches, leading to unpredictability.
- Anticipatory bail misuse vs. genuine protection: While some seek anticipatory bail to shield themselves from harassment, others exploit it to evade accountability.
This tension underscores the urgent need for a more uniform, principle-driven approach.
The Way Forward:
Reforming bail laws requires both legislative clarity and judicial innovation:
- Uniform Guidelines: India may benefit from structured bail guidelines, similar to those in the UK and US, to reduce inconsistencies.
- Technology Integration: Digitised communication of bail orders, automated tracking of undertrial cases, and real-time court-prison connectivity can prevent unnecessary detention.
- Balanced Judicial Sensitivity: Courts must strike a careful balance—protecting the individual’s liberty while ensuring that victims and society are not placed at risk.
Conclusion:
Bail is not about innocence or guilt—it is about preserving liberty until guilt is established in a court of law. The BNSS, 2023, offers an opportunity to modernise bail processes, though its effectiveness will ultimately depend on judicial interpretation and enforcement.
As India transitions from CrPC to BNSS, the way we handle bail applications will significantly shape the justice system. Upholding liberty while ensuring justice remains the ultimate test of our criminal jurisprudence.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. The content may not reflect the most current legal developments and is not guaranteed to be accurate, complete, or up-to-date. Readers should consult a qualified legal professional before taking any action based on the information provided. The authors and publishers disclaim any liability for any loss or damage incurred as a result of reliance on this article. This article does not create an attorney-client relationship.