Abstract
India’s updated criminal law framework, introduced with the Bharatiya Nagarik Suraksha Sanhita 2023, shifts the equilibrium between state authority and individual liberty. With enhanced powers of arrest, more stringent anticipatory bail provisions and increased emphasis on public and victim interests, the new framework raises an important question. This article examines whether such a transition undermines the core values of a rights-based justice system, where the presumption of innocence and the safeguarding of liberty are paramount.
By analysing the structural reasoning of the BNSS compared to its predecessor, the Code of Criminal Procedure, the research uncovers how statutory language and procedural barriers collectively shift the focus towards custodial outcomes. It investigates the normative implications of this shift, which may exacerbate inequalities for marginalised groups, increase prison overcrowding, and transform the criminal process into a means of social control instead of a channel for adjudication.
Through a comparative approach, the study highlights India’s changing bail philosophy, contrasted with global practices that favour liberty unless clear risks warrant detention. It then explores whether India can establish a bail system that better protects freedom, incorporating conditional release strategies, risk assessments, and procedural safeguards without neglecting societal concerns.
Introduction
The bail system is an essential component of every criminal justice framework, striking a balance between the government’s desire to uphold public order and a person’s inherent right to liberty.
The principle that “bail is the norm, while jail is the exception” highlighted in Indian criminal law is not merely a matter of rhetoric. It embodies the constitutional values of liberty as espoused in Articles 21 and 22 and reaffirms the insistence of courts that pre-trial detention should only be used as a last resort. The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, has made legislatively substantial changes to various areas of criminal justice, including bail law. This article will examine whether bail remains the rule in practice. It will review statutory reforms contained within the BNS, recent decisions of the Supreme Court and other developments in the High Court, empirical studies, and divergences from principle in practice, with some recommendations at the conclusion.
1. Historical Context and Justification for Reform
The Criminal Procedure Code (CrPC), implemented in 1973 as a replacement for colonial laws, has been the foundational procedural framework for India’s criminal justice system. Even with various amendments, it has faced difficulties in tackling contemporary issues like overcrowding in prisons, delays in the judicial system, and varied practices regarding bail. According to data from the National Crime Records Bureau (NCRB) in 2022, more than 70% of India’s prison inmates were undertrial prisoners, many of whom have been detained due to strict bail requirements or lack of legal assistance.
The Supreme Court’s significant ruling stating that “bail is the rule, and jail is the exception,” first established in State of Rajasthan v. Balchand (1977)[1] and reinforced in Sanjay Chandra v. CBI (2011)[2], highlighted the necessity for reform. The court emphasised speedy trials and called that undertrials often spending periods longer than the maximum sentence for their offence, was a gross violation of Article 21 in the case of Hussainara Khatoon v. State of Bihar.[3]
2. Changes under the Bharatiya Nagarik Suraksha Sanhita, 2023
With BNSS coming into force in July 2024, several changes affect bail; BNSS more clearly defines bail, bail bond, bond, and elaborates procedures in a dedicated portion of the statute.
- Statutory Protections for First-Time Offenders: BNSS provides lenient bail requirements for first-time offenders. Under Section 479 of BNSS, if an individual is a first-time offender (meaning they have no prior convictions) and is currently an undertrial, they will be granted release on bond after serving one-third of the maximum potential sentence for the offence, except in cases punishable by death or life imprisonment
- Anticipatory Bail: The previous anticipatory bail (CrPC Section 438) has been replaced by anticipatory bail (Section 482 BNSS). With more stringent requirements, courts can now award anticipatory bail under the BNSS, even in cases involving major economic offences.
- Statutory (or Default) Bail: Under the new law, an accused person may request default bail if the charge sheet and investigation are not finished within the allotted period. The BNSS permits 15 days of police custody to be allocated throughout the first 40 or 60 days of detention, in contrast to the CrPC’s set 15-day cap. This adjustment might postpone the availability of statutory bail, especially if police custody is intentionally spaced out, which raises questions about its effect on the rights of undertrial prisoners.
BNSS includes provisions that systematically enhance the state’s authority over custody. While Section 39 allows for detention based on hypothetical worries, like the possibility of public disorder, instead of concrete, verifiable dangers, Section 35 grants law enforcement the power to arrest without a warrant in a wider variety of circumstances. Section 482 significantly limits anticipatory bail and mandates that courts take victim and public interests into account as significant factors, in contrast to Section 438 of the CrPC, which primarily focused on flight risk and evidence tampering. These modifications suggest a preference for pre-trial custody by law, which makes freedom secondary and conditional.
Economically disadvantaged and socially marginalised groups are disproportionatelyaffected by theBNSS’s shift towards rehabilitative justice. Migrant labourers and individuals from Dalit and Adivasi groups often do not have the social and financial means required to navigate intricate bail processes or secure sureties. As per the information from the National Crimes Records Bureau, over 77% of inmates in India are awaiting trial, with a majority coming from economically disadvantaged backgrounds.
3. Supreme Court and High Court Responses
- The Supreme Court, in August 2024, ruled that the relaxed bail provisions for first-time offenders under BNSS should apply retrospectively, even to offences committed before the law came into force, for pending trials. This is significant for undertrial prisoners.[4]
- The Kerala High Court granted anticipatory bail under BNSS even though allegations included economic offence / multiple frauds. The court imposed stricter conditionality but reasoned that statutory severity doesn’t automatically justify bail denial when the prima facie case is thin.[5]
- The Supreme Court had suggested a standalone law for bail, but the central government responded that Chapter XXXV of BNSS adequately covers bail law, thus no separate bail statute is needed.[6]
- High Courts have, in some cases, criticised arrests as unlawful or bail denials as overly reliant on the severity of the offence without sufficient evidence. For example, the Karnataka High Court granted interim bail to four executives in the stampede case, deeming arrests vitiated or defective.[7]
4. Practice-Related Tensions
Despite legal principles and reforms, several conflicts persist that often divert practice from the ideal of bail as the standard:
- Strict statutory measures for serious economic and organised crime offences
BNSScategorises more offences as serious; stricter anticipatory and regular bail conditions are frequently imposed. Prosecutors often contend that the severity and potential for flight or evidence tampering justify denial.
- Delays in Investigation and Filing Charge-Sheets
Although the law provides for default bail, delays in filing charge-sheets, arrest delays, and staggered custody periods can undermine this benefit. Courts sometimes fail to rigorously uphold timelines.
- Varying Judicial Discretion vs Consistency
There is inconsistency among various High Courts and trial courts. Some courts are more lenient in granting bail under BNSS, while others take a stricter stance, heavily considering the offence’s gravity.
- Constraints in Resources
Courts, particularly at the district and subordinate levels, face significant caseloads, inadequate infrastructure, and a shortage of judicial personnel. These issues result in delayed hearings for bail applications, causing accused individuals to remain in custody longer than warranted.
- Pressure from the Public and Media
In high-profile cases involving economic fraud, violent crimes, or scandals, public opinion often calls for stringent measures; courts may reflect this by denying bail or enforcing stricter conditions.
5. Comparative Study: Bail in Other Jurisdictions
To provide context for the BNSS, it isuseful to briefly compare it with bail systems in other countries:
United States: The Eighth Amendment governs bail, prohibiting excessive amounts. Many states utilise cash bail systems, which have been criticised for having a disproportionate impact on low-income defendants, mirroring the pre-BNSS issues in India. In contrast, the BNSS’s requirement for mandatory undertrial bail presents a fairer option.[8]
United Kingdom: Under the Bail Act 1976, there is a presumption in favour of granting bail unless there are valid reasons (such as the risk of fleeing or reoffending) that warrant detention. The discretionary anticipatory bail under the BNSS reflects this flexibility, yet it does not incorporate the structured risk assessment methods seen in the UK.[9]
Australia: Bail determinations take into account community safety and the needs of victims, similarly to how the BNSS addresses serious offences. Nevertheless, Australia’s implementation of electronic monitoring for bail conditions exceeds the BNSS’s limited use of technology.
6. Recommendations
1. Strict Adherence to Timelines
Courts should ensure that investigations and charge sheets are submitted within stipulated timeframes. Any delays must result in default bail being granted without undue postponement.
2. Enhancing Legal Aid & Accessibility
Numerous undertrial detainees lack proper legal representation. Legal aid should receive increased funding and be made more accessible, particularly in rural regions.
3. Guidelines/Precedents for Consistency
The Supreme Court should provide clearer guidelines for denying or granting bail under the BNSS, particularly for serious economic crimes, to minimise inconsistencies among High Courts.
4. Oversight of Conditions & Sureties
Bail conditions and bond/surety requirements should not be so burdensome that they render bail nearly impossible. Alternative non-custodial measures (house arrest, electronic monitoring) should be utilised more frequently.
5. Data Gathering & Openness
There should be accurate and consistently updated information regarding bail requests, approvals versus rejections, the duration of pretrial detention, and the use of default bail available to the public. This promotes oversight and reform.
6. Judicial Training & Infrastructure
There needs to be training for judges, particularly at lower levels, regarding BNSS regulations. Additionally, investing in court facilities to minimise delays (more personnel, improved record-keeping, digital hearings, etc.) is essential.
7. Conclusion
The Bharatiya Nyaya Sanhita has implemented significant reforms, such as more precise definitions for bail, legal protections for first-time offenders, provisions for default bail, and improved clarity in the law. Recent decisions from the Supreme Court and High Court indicate that the judiciary is making efforts to uphold the constitutional principle that “bail is the rule, jail the exception.” However, various systemic challenges — including delays, lack of resources, and inconsistencies across different jurisdictions — mean that many accused individuals, especially those from economically disadvantaged backgrounds, still find it difficult to obtain bail. The expectation is that the legal assurance of freedom under BNSS, along with a strong application of legal principles and institutional improvements, will help bridge the divide between legal ideals and actual experiences.
References
- Hussainara Khatoon v. State of Bihar, (1979) 3 S.C.C. 545.
- State of Rajasthan v. Balchand, (1977) 2 S.C.C. 621
- S. Chandra v. Central Bureau of Investigation, (2019) 16 S.C.C. 739.
- Bharatiya Nagarik Suraksha Sanhita, 2023.
- Supreme Court Ruling on Relaxing Bail Provisions for First-Time Offenders under BNSS, Indian Express, Aug. 27, 2024. The Indian Express
- Kerala High Court – anticipatory bail under Section 482 BNS in economic offences case, 2025. Supreme Today
- Government Rejects Separate Bail Law Suggestion; Affirms Chapter XXXV BNSS Adequate, Hindustan Times, Jan. 28, 2025. Hindustan Times
- Locked Justice: Evaluating Judicial Interventions on Prison Overcrowding […] Post-BNS, 2023, Criminal Law Journal, 2025. Criminal Law Journal
- Bengaluru Stampede: Deeming arrests unlawful, HC grants bail to 4 executives. The Times of India
- Nikhil Sosale v. State of Karnataka
- Satender Kumar Antil v. CBI, (2024) 9 SCC 177
- Anatha Krishnan vs State of Kerala – 2025 Supreme(Online) (KER) 11777
- In re, 2024 SCC OnLine SC 3596
[1]State of Rajasthan v. Balchand, (1977) 2 SCC 621
[2]S. Chandra v. Central Bureau of Investigation, (2019) 16 SCC 739
[3]Hussainara Khatoon v. State of Bihar, (1979) 3 SCC 545
[4] Inhuman Conditions in 1382 Prisons, In re, 2024 SCC OnLine SC 3596
[5] Anatha Krishnan vs State of Kerala – 2025 Supreme(Online) (KER) 11777
[6] Satender Kumar Antil v. CBI, (2024) 9 SCC 177
[7] Nikhil Sosale v. State of Karnataka
[8]Impact of the Eighth Amendment on Federal Bail Reform Initiatives https://leppardlaw.com/federal/bail/impact-of-the-eighth-amendment-on-federal-bail-reform-initiatives/
[9]Bail Act 1976 (UK), s 4(1)
Author Name- Himanshu, 2nd year LL.B. student, Campus Law Centre, DU
