Foundational Principle of Bail in India’s Criminal Justice System
The bedrock of India’s criminal justice system is foundedupon the upon the principle that ‘bail is the rule, jail is the exception’ as articulated by the Supreme Court of India in State of Rajasthan v. Balchand. This doctrine flows from the foundational presumption of “innocent until proven guilty”. However, in contemporary practices the principle appears to be polar opposite, jail has become the rule, and the bail has become the exception.
Undertrial Population and Ground Realities
According to the Prison Statistics India 2022 report published by National Crime Bureau (NCRB) undertrial prisoners constitute 75.8 % of India’s prison population i.e., 4,34,302 out of 5,73,220. These are not just merely statistical numbers. Each number represents a person whose life, dreams, dignity, and worth are put on hold often without a finding of guilt.
- The process which should lead to justice is the process which is becoming punishment.
- The delays are so long that the process itself becomes the punishment.
- Delays in investigation and trial are so prolonged that the process effectively supplants the penalty.
Judicial Recognition of the Problem
It is not that the judiciary has never put a light on these issues but these but still the whole system is contradicting itself and biases are being shown. In the case of Union of India v. K.A. Najeeb Supreme Court clearly stated that no-one can be put behind the bars just for a long-time without trials.
In the case of Vernon Gonsalves and Arun Ferreira 2023 the Supreme Court stated that while the charges against the two accused are serious, that alone cannot be the reason for denying bail.
Gap Between Constitutional Ideals and Implementation
The cases clearly give us the picture that this is not because of the lack of judicial awareness. However, the persistence of prolonged undertrial incarceration reveals a troubling gap between constitutional ideals articulated by the judiciary and their implementation within the Criminal Justice System.
Article 21 and Prolonged Pre-Trial Incarceration
Furthermore, if one were to set aside all the established doctrines and judicial precedents, the elongated pre-trial can not survive scrutiny when tested under against Article 21 of the Indian Constitution. The right to life and personal liberty, mandates that any deprivation of liberty must be fair, just, and reasonable, the standards which are definitely not met by the prolonged incarceration without trial.
Constitutional Guarantees vs. On-Ground Application
The dissonance between constitutional guarantees and their on-ground implementation and application becomes most visible when these principles are examined in concrete cases.
Umar Khalid as a Case Study of Restrictive Bail Jurisdiction
Very one such example is of Umar Khalid which portrays a compelling illustration of how bail jurisdiction, despite clear constitutional and judicial guidance continues to operate restrictively in practice. Umar Khalid arrested in September 2020 in connection with Delhi riot case under the Unlawful Activities Prevention Act (UAPA), Khalid has still been in custody for about 5 years without any meaningful mannered trial.
His continued incarceration, in the absence of trial raises serious concerns on the functioning of the justice system, particularly under Article 21, in light of Supreme Court’s consistent position that deprivation of personal liberty cannot be rendered punitive by procedural delay. Supreme Court has repeatedly cautioned that the graveness of allegation does not justify the suspension of their personal liberty.
The Indian justice system works on the doctrine of Natural Justice wherein everyone has the right to be heard which is solely missing in Khalid’s case.
Prolonged Pre-Trial Incarceration as a Systemic Failure
Rather than being an aberration, prolonged pre-trial incarceration reflects deeper systematic failures that operate at multiple levels of Criminal Justice Process.
Indiscriminate Arrest as the Entry Point of Injustice
The entry point lies at the practice of indiscriminate arrest, often contradicting the necessity standard set by the Supreme Court. The significant portion of undertrial enter the prison due to indiscriminate and mechanical arrest by law enforcement, often is serious violation of judicial standards.
The landmark judgement in Arnesh Kumar v. State of Bihar (2014) sought to curb this practice of arbitrary arrest, especially for offences with punishment of upto seven years.
Key Directions Laid Down in Arnesh Kumar v. State of Bihar (2014)
- Police officers had to follow strict procedures including issuance of notice.
- Mandating accused’s appearances instead of automatic arrest.
- Police must provide explicit reasons justifying the need for custody.
- The record must be furnished to magistrate along with the remand application.
The inability to institutionalise the culture of liberty at the point of arrest is profound failure of administrative governance. It is a norm in India that if you are being arrested, that means you definitely have committed a crime, and the same trends the system is following which is very unfortunate.
Absence of Procedural Expedition and Speedy Trial
Once arrested, the absence of procedural expedition compounds the deprivation of liberty and this according to all the census and stats is the most direct cause of prolonged pre-trial detention.
This structural deficiency renders the right to a speedy trial established in Hussainara Khatoon routinely violated.
Crisis at the Foundational Level of Justice Delivery
The most eye-opening fact is that the crisis is more acute at foundational level of justice delivery.
| Judicial Indicator | Extent of the Crisis |
|---|---|
| Share of Subordinate Courts in Total Backlog | Nearly 85% |
| Total Pending Cases | 47 Million |
| Criminal Cases in Pendency | 70% |
| Cases Pending for Over 30 Years | More than 1,80,000 |
The sheer number of cases guarantees massive delay: over 1,80,000 cases are ending for more than 30 years.
The directly linked cause for this crippling pendency is most particularly high judicial vacancies. With this high judicial incapacity, the state becomes structurally incapable of delivering justice in timely manner.
This justice system’s inability to function properly is punishing the unconvicted and innocent people.
Economic Discrimination and the Crisis in Legal Aid
These systematic and procedural deficiencies do not operatein a social vacuum. Their consequences are disproportionately borne by economically vulnerable accused persons. In the race of bail, economically weaker individuals are often leftway behind. This structure ensures that individuals who are unable to meet the financial threshold are forced to remain incarcerated even though their offences are very minor and bailable. This reliance on financial capacity effectively transforms the criminal process into a “modern debtor’s prison”, starkly contradicting the constitutional mandate for justice without economic or social discrimination.
Higher courts have recognised this economic bias and have issued directions which will soften the surety requirements. Higher courts mandated that the lower courts must adhere too section 440 bnss and also the Under Trial Review Committees (UTRCs) should recommend releasing indigent UTPs on personal bonds if they are unable to furnish bail bond within seven days of bail order. However, due to high number of UTPs the judicial discretion is yet to be effectively implemented on the ground level.
Structural Deficit in Legal Representation
Free Legal Aid which now seems only to be some bookish term seems far from implementation. It is guaranteed by Article 39 of the constitution, but it is very underutilised. NCRB data indicates that only 7.91% of undertrials utilise free legal aid. The shocking data shows how much lack of execution is there in the system, furthermore entrenching the crisis for the marginalised.
The failure of the legal aid system stems from critical structural and governance deficits:
Key Structural and Governance Deficits
- Funding and Renumeration: The whole of the system is so corrupted that that even after being allocated funds the system is still underfunded. The combined spending by NALSA and state legal service authorities was calculated at only 4.57 rupees per person per year in 2021-22. Also, honoraria for panel lawyers are extremely low and payments are delayed for months. The poor compensation policy structurally discourages the time intense work necessary to deliver the justice.
- Negative Perception: Due to poor quality and inconsistency associated with free legal aid, many undertrials make up their mind to hire a private lawyer to defend them even if the cost of the lawyer is beyond their financial standard. This belief does not affect the deep pocketed people much, but it does affect the poor people, it forces them to bear an unsustainable economic burden only in the hope that they will get the justice.
Legal Aid Funding Snapshot
| Indicator | Data |
|---|---|
| Utilisation of Free Legal Aid by Undertrials | 7.91% |
| Per Capita Spending by NALSA and State Authorities (2021–22) | 4.57 Rupees Per Person Per Year |
The Human And Social Cost
The consequences of prolonged pre-trial are immense and the most grave one is the violation of human rights. The kind of inhuman behaviour shown towards them goes unchecked, they have to crave for basic human facilities like clean water and food. The systematic neglect disproportionately impacts vulnerable groups, including women, who face intersectional barriers to bail.
Economic And Social Impact Of Pre-Trial Detention
Even for a second if we will keep aside the loss of liberty. Pre-trial detention extracts an insidious economic toll on detainee and their families. They are subsequently compelled to pay bribe for accessing basic facilities. The families are also asked for pecuniary bribe to meet their family member.
When the accused is acquitted, the economic and emotional damage inflicted during years of custody remains, having severely damaged their family units and community standing. The society becomes the first judged when someone is detained and if he is in judicial custody for years his reputation is already degraded irrespective of the fact that he was not guilty but was just being detained because of the systematic failure.
Pathways To Decarceration
Legislative And Judicial Reforms
To address the pre-trial detention crisis the first and the foremost goal should be the co-ordination between the three spheres i.e., the legislative, executive and the judiciary focusing mostly on preventing unnecessary incarceration because that is the root of the crisis, and also focusing on accelerating release.
BNSS Section 479: Accelerated Relief Mechanism
BNSS Section 479 introduces a mechanism that promises accelerated relief for specific category of UTPs. This section mandates that the first-time offenders should be released on bond after they have undergone detention for only one-third of the maximum period of imprisonment specified for that offence.
- Section 479 places a clear, mandatory, and proactive responsibility on the Superintendent of the Jail.
- A written application must be submitted to the Court upon completion of the one-third or one-half detention period.
- The objective is to facilitate the UTP’s release without requiring the accused to individually petition the court.
This shift in responsibility to non-judicial actors (the jail administration) is intended to move the system away from reliance on the individual accused petitioning the court and toward automated, administrative oversight of liberty rights.
Limitations Of Section 479
However, Section 479(2) restricts release if the UTP is facing investigation, inquiry, or trial in more than one crime or in several instances. This exclusion risks not solving the greater challenge of prolonged pre-trial imprisonment for individuals facing multiple, concurrent cases, potentially limiting the impact of the reform on the overall UTP population.
| Aspect | Provision / Impact |
|---|---|
| Eligibility | First-time offenders undergoing pre-trial detention |
| Release Threshold | One-third of the maximum prescribed sentence |
| Responsible Authority | Superintendent of the Jail |
| Key Limitation | Not applicable to UTPs facing multiple cases |
Procedural Improvements and De-monetisation of Bail
- Mandatory accountability must be enforced for law enforcement officers and magistrates who violate arrest guidelines, with stringent action and contempt proceedings.
- Courts should focus on encouraging non-monetary alternatives, such as personal bonds, surety-free release, and community bases supervision.
- Dedicated bail benches should be established in high courts and district courts to focus on timely disposal of bail application specifically the ones with minor offences, which will reduce the overall burden on the system.
Structural Judicial and Legal Aid Reforms
- Urgent administrative action is needed to fill the judicial vacancies which are there for a sustained period. The timeline should be offered to the judges wherein they have to deliver the justice within that statutory timeline.
- The budget for legal Aid should be increased, and the government should ensure competitive, timely renumeration for panel lawyers. Furthermore, systems must be implemented to mandate the continuity of representation and improved co-ordination between prisons, courts and DLSAs, thereby ensuring substantive legal defence rather than mere procedural tokenism.
Conclusion
The pre-trial detention crisis in India is an outcome of the intersection between three strands of systematic failure: legislative denudation of constitutional guarantees through special laws; administrative resistance leading to arbitrary arrests and debilitative judicial delays; and institutionalised economic discrimination that underlies the monetary bail system and lacklustre legal aid provision.
This structural failure, where over 70% of prisoners are denied liberty without conviction, violates the constitutional promise of Article 21 and disproportionately punishes the poor and marginalised. The crisis reflects poorly on the credibility of the judiciary as a bulwark against injustice.
Rebuilding confidence in the rule of law requires a joint, multi-stakeholder effort. The judiciary has to apply the constitutional provisions with a firm hand and circumscribe the arbitrary power of the executive. It is long past time to force law enforcement to honour liberty before custody, so that the rule of arrest becomes the exception.
Last but not least, the legislative and executive must allocate funds to re-form legal aid and increase judicial capacity for quick completion of trials. That’s the only way India can infuse criminal justice practices with the nation’s constitutional core values of justice, fairness and equity. The need to do away with this hidden crisis of mass pre-trial detention is all the more apparent.
