Undertrials are the individuals who are yet to be found guilty of the crime they have been accused , by a court of law . Undertrials make up a large section of the prison population in India, and many of them are kept behind bars for extended periods of time as a result of slow judicial proceedings, delayed investigations, inability to provide bail bonds, or lack of legal support. In a society that is based on popularity, even the privileges of the accused are consecrated, and the accused in India are managed certain rights, the most essential of which are found in the Indian Constitution . Their imprisonment prior to conviction directly challenges the “presumption of innocence” and raises concerns regarding the infringement of their fundamental right to life and personal liberty as stipulated in Article 21[1] of the Indian Constitution. “Presumption of innocence” is a legal principle which states that an individual shall have the right to be presumed innocent until proven guilty according to the law . The issue regarding the undertrial prisoners highlights the urgent need of bail reforms in India.
“ Bail ” comes from the old French word “ Baillier, ” which means to deliver or hand over. It generally refers as an important tool that balance the protection of particular liberty with the conditions of felonious justice. According to the case , Gurbaksh Singh v. State of Punjab, (1980)[2], where the Supreme Court ruled that granting bail entitles an arrested or imprisoned individual to liberty by removing the security of his court appearance on a specific day. The term “bail” refers to release on one’s own bond.
The literal meaning of the word “bail” is surety[3]. Bail, therefore, refers to release from Custody, either on personal bond or with sureties. Bail relies on release subject to monetary Assurance either one’s own assurance (also called personal bond) or through Third party sureties. The Supreme Court has also reiterated this definition in the Moti Ram Case.
In order to insure fairness and equity, judicial precedents have broadened the operation of The Code of Criminal Procedure, 1973( CrPC) 6, which establishes the frame for granting bail. Still, The CrPC was replaced by the BNSS, which marks a significant reform in India’s felonious procedure frame. The main object of arrest and detention of the indicted person is primarily to guarantee his appearance at the time of trial and to insure that, he’s available to admit the judgment in case he’s set up shamefaced. But if his appearance at trial can be guaranteed without arresting him, it’s inequitable to detain him while the case is pending.
1. Background
Plato tried to create a bond for socrates’ release in 399 B.C., where the first concept of Bail emerged. The concept of modern bail chiefly originated from all the medieval laws governing it .The sheriff’s possessed the supreme authority over whether to arrest or release suspected criminals in medieval England. For their own profit , some sheriffs would take advantage of the bail. Later, sheriffs’ authority over arrests and bail was limited by the Statute of Westminster. Although , Sheriffs would still have the power to be able to set the bail amount. The concept of bail was somewhat common in ancient India as well because Kautilya’s Arthashastra also mentioned that it was preferable to avoid pre-trial detention. Bail was practiced in the form of “Muchalaka” and “Zamanat” during the Mughal era in the 17th century. Currently, bail is governed by the BNSS which replaced the CrPC . Bail, Bond and Bail bond is not explicitly defined in the CrPC but it has been used multiple times in the BNSS. The BNSS gives the definitions for these terms for the first time in Section 2[4]of the Sanhita .
1.1 Criminal Procedure Code, which was passed in 1973 laid down the provisions bail in India. It determined whether the accused was entitled to bail by classifying crimes and offenses into bailable and non-bailable. The important provisions under the Criminal Procedure Code included:
- Section 436: Right to bail for bailable offenses.
- Section 436A: Maximum period of detention undertrial prisoners.
- Section 437: Bail for non-bailable offenses under judicial decisions.
- Section 438: Anticipatory bail, which permits people to request bail prior to an arrest.
1.2 Recognizing the loopholes and limitations of the CrPC, the Bhartiya Nagarik Suraksha Sanhita was implemented in 2023 as a component to modernize the criminal procedure. The goals of BNSS are to improve access to justice, address systemic inefficiencies, and close loopholes. The following are the main goals of the reform:
- streamlining and simplifying the bail process.
- Maintaining uniformity.
- Incorporating technology to fasten the administration of justice.
- Addressing the public’s concerns regarding bail provisions’ abuse and delays.
- Justice Accessibility.
2. Objective
- Reducing the issue of overcrowding in Indian prisons, where a significant percentage of prisoners are undertrial prisoners, is one of the main goals of bail reform.
According to the case, Hussainara Khatoon v. State of Bihar (1979)[5] , Supreme Court held that the “right to speedy trial” is a component of Article 21 of the Constitution , highlighting the predicament of thousands of undertrial prisoners who have been held in jail for years. Therefore, the goal of bail reforms is to prevent people from being unnecessarily held before being found guilty.
- Bail reforms aim to uphold the constitutional principle that personal liberty under Article 21 may only be restricted in accordance with a fair, reasonable, and just procedure.
According to the case Moti Ram v. State of M.P. (1978)[6] , the Court emphasized that, In order to prevent discrimination against the poor, bail requirements should not be unduly severe or reliant on the accused’s financial situation.
- The objective of bail reforms is also to reinforce the principle of equality before law enshrined in Article 14.
According to the case , Gudikanti Narasimhulu v. Public Prosecutor (1978)[7], reiterated that “bail is the rule and jail is the exception.” This principle ensures that pre-trial detention is not imposed arbitrarily and that economic disparities do not become the basis for denial of bail.
- The constitutional guarantee to a speedy trial is intertwined with bail reforms.
According to the case , Supreme Court Legal Aid Committee v. Union of India[8] , The Supreme Court ordered the release of undertrial prisoners who had already served a significant amount of the maximum sentence prescribed for the offense. This emphasized the objective of granting bail when an prolonged trial leads to unwarranted pre-trial detention.
2.1 Legal frameworks related to the bail
- Bail to Undertrial Prisoners
- CrPC : Section 436A[9] of the Criminal Procedure Code (Cr.P.C.), which was added through the 2005 Amendment.However, they’re eligible for bail, If an undertrial internee has been detained for half of the maximum discipline for their offense( except for crimes punishable by death). This clause was included to admit the indicted person’s right to a fair and prompt trial while they’re being held as an undertrial internee.
- BNSS : Section 479[10] of BNSS, which is like Section 436A of the Cr.P.C., has made important changes to how bail is given to undertrial prisoners, such as:
- Reducing detention time for First-Time Offenders: Time malefactors preliminarily, indeed if a first- time lawbreaker had spent a maximum quantum of time in jail awaiting trial, the law did n’t permit early release for those who had noway been condemned. For similar first- time malefactors, the new law allows early release handed they’ve served up to one- third of their judgment as an undertrial prisoners.
- If there are multiple pending cases, bail can’t be granted previouly, there’s no law that prevented an undertrial prisoner from being granted bail if they were being delved , If there are multiple pending cases. Still, the new law is now further stricter and wo n’t grant bail to someone who has several cases against them.
- Anticipatory Bail under Bharatiya Nagarik Suraksha Sanhita
When someone expects to be arrested for a crime, they can apply for anticipant bail before court to avoid detention.
With the exception of one particular rejection, anticipant bail in the BNSS is n’t much different from that in the Cr.P.C. This change expands the compass by denying anticipant bail to those indicted of gang rape on women under 18 times of age, whereas the Cr.P.C. sets this limit at 16 times of age as given in sub-section 4 of Section 482[11] and Sub-section (2) of section 70[12] of BNSS.
- Extended Police Custody
- CrPC : During sounds for the indicted’s regular bail operation, the execution frequently argues against bail by stating that the indicted’s guardianship is demanded to help investigative agencies identify substantiations as given in Proviso 3 to Section 437[13] of Cr.P.C.
- BNSS :The new law slightly changed the being rule by stating that if the court sees the indicted requirements to be in guardianship for further than fifteen days to identify substantiations during the disquisition, they can still get regular bail.
- Article 21 under Indian Constitution gives everyone the right to particular liberty which gives us the freedom to live with quality and we can seek for bail when detained by any law enforcement.
2.2 Classification of Bail
- Regular Bail
It means when a person who has already been arrested and is in police or judicial custody applies to be released from custody. If granted, they are free to leave, but they have to abide by the rules the court has established.
According to the case, Prem Prakash v. Union of India (2024)[14] , where the The Supreme Court clarified that courts should not grant bail based on undertakings by the accused or their families to deposit money. All bail applications must be decided strictly on their legal merits.
- Anticipatory Bail
It means bail granted before a person is actually arrested, when they fear they might be arrested for a non-bailable.
According to the case , Siddharam Satlingappa Mhetre v. State of Maharashtra[15], which further clarified its scope, emphasizing that the power is not limited to exceptional cases and cannot be refused for technical reasons like the absence of an FIR.
- Interim Bail
It means a temporary bail granted by the court until the application for regular bail or anticipatory bail is granted.
According to the case , Parminder Singh v. State of Punjab[16] ,where the Delhi High Court noted that interim bail is appropriate when there is no danger of the accused absconding or tampering with evidence, and a proper case for custodial interrogation is not made out.
- Statutory Bail
It is the bail that an accused person is entitled to when the police do not complete their investigation and file the charge sheet within the legally mandated time frame, which is typically 60 or 90 days.
According to the case , Suresh Kumar Bhikamchand Jain v. State of Maharashtra (2001)[17] , Where it upheld the indefeasible right to default bail under Section 167(2) CrPC. The court held that the magistrate must order the accused’s release if the charge sheet is not filed within the allotted time as any further detention would be illegal.
3. Challenges faced by the Undertrial prisoners
In India’s felonious justice delivery system, over 0.2 million undertrial captures were left uncared in jail for numerous times; in numerous cases, their rulings exceeded the maximum penalty for the crimes they had committed. “ Justice delayed is justice denied. ” The poor continued to suffer in incarcerations due to a lack of collaboration between the Centre, the bar, and the state governments, as well as the fact that they demanded means to serve as bail bonds and sponsors.
There are many challenges faced by these undertrial prisoners are:
- Prison Violence
Prisoners are frequently dangerous, with frequent group violence and screams. For illustration, in Sao Paulo( 1992), over 111 captures were killed during a hoot, while in Chhapra District Prison, Bihar( 2002), 6 convicts failed in a hoot during a three day standoff. Inside incarcerations, first- time or demure malefactors are frequently tortured, forced into slavish labor, and penalized with demeaning treatment similar as being made to sleep near hygienic toilets if they repel. The worst form of Captivity violence was witnessed in Khatri v. State of Bihar, where the police had dazed 80 suspected culprits by puncturing their eyes by needles and dousing them by acid.
- Criminalizing Effect of Prisons
Due to lack of proper bracket, first- time or youthful malefactors are frequently separate with hardened culprits, leading to their corruption and criminalization. As frequently quoted, “ incarcerations are universities of crime, where people enter as undergraduates and leave with PhDs in crime.
- Right to Speedy Trial
As recognized in Hussainara Khatoon v. Home Secretary, Bihar (1979), this right is frequently violated due to systemic detainments, deficit of judges and prosecutors, late service of process, judges’ absence, mechanical remand extensions, lack of police staff or vehicles for producing captures, and the illegal practice of producing only remand papers rather of the indicted, despite Section 167( 2)( b) CrPC taking physical product.
- Prison Health Issues
Overcrowding and poor installations make incarcerations unsafe, especially as utmost captures come from underprivileged backgrounds with health problems. Crowded conditions spread conditions fluently- an NHRC study( 1998) set up 76 of captivity deaths in India were due to tuberculosis.
- Denial of Right to Bail
Even in genuine cases, the right to bail is denied. Due to exorbitantly high bail quantities, captures are set up to rot in incarcerations indeed when they were charged with a crime that carries a bail quantum.
- Drug abuse
A large portion of captures are detained underanti-drug laws after serious offences. Inside incarcerations, insulation and despair drive addicts to seek illegal substances, while the terrain frequently pushes new convicts into medicine abuse, making incarcerations hotspots for substance dependence.
4. Reforms for the plight of undertrials
- Speedy Trial
One of the most effective strategies to address the unjustified issue of overcrowding is still speedy trial. Lawyer to Prisoner rate presently, there isn’t a counsel for every 30 convicts, which is the recommended rate. Special Courts Petty offenses that have been undetermined for further than five times should be the sole focus of special fast- track courts.
- Lawyer to Prisoner Ratio
There should be at least one counsel for every 30 prisoners, which isn’t the case at present.
- Special Courts
Petty offenses that have been undetermined for further than five times should be the sole focus of special fast- track courts. Also, those indicted of minor offenses who are granted bail but are unfit to secure a surety ought to be released on a particular Word Bond.
- Accommodative Transition
Every new prisoner should be allowed a free phone call a day to his family members to see him through his first week in jail.
- Alternatives to Imprisonment
Courts can use discretionary powers to put forfeitures or admonition rather of jail, and may also release malefactors on exploration at thepre-trial orpost-trial stage in meritorious cases.
- Legal Aid
Giving prisoners effective legal backing as well as taking action to give them education and vocational chops.
5. Whether prolonged detention of undertrial prisoners violates Article 21 of the Constitution?
Article 21 of the Constitution, which protects the right to life and particular liberty, is violated when undertrial convicts in India are held for extended ages of time. The Supreme Court has ruled that extendedpre-trial detention, particularly beyond the maximum penalty for the contended offense, is unconstitutional and that this right includes the right to a speedy trial. Thus, in order to cover this abecedarian right, courts are needed to grant bail in similar cases.
- Judicial Recognition of Speedy Trial as a Fundamental Right
In Hussainara Khatoon v. State of Bihar (1979), the Supreme Court observed that thousands of undertrial captures had been detained for ages longer than the maximum discipline specified for their contended offences. The Court held that similar prolonged detention amounted to a violation of Composition 21 and declared the right to speedy trial as a abecedarian right.
- Causes for prolonged detention
Systemic detainments brought on by backlogs in cases, a lack of judges, and poor structure.
- Violation of Liberty and Equality
Prolonged detention effectively convertspre-trial guardianship into discipline before conviction, which is inconsistent with the presumption of innocence.
It discriminates against the poor who cannot afford bail, violating Article 14 in conjunction with Article 21.
6. Government steps
- Mulla Committee (1980)
The commission suggested conduct to support the mortal rights of captures, ameliorate training and professionalization of captivity staff, concentrate on recuperation and reintegration, expedite trials and decongest incarcerations, and give programs for skill development, education, and internal
- National Policy on Prisons (2000)
Emphasized humane treatment, recuperation, and reintegration.
- Model Prison Manual (2016)
By furnishing guidelines for the operation of detentions and captures, it seeks to cover mortal rights, guarantee humane conditions, and encourage the reformation and recuperation of culprits.
- Modernisation of Prisons (2021–2026)
₹950 crore allocated for better structure and security.
- Model Prisons & Correctional Services Act (2023)
Focus on guardianship, discipline, and order
- Support to Poor Prisoners Scheme (2024)
The Ministry of Home Affairs has set away Rs 20 crore to give fiscal support to impoverished captured individualities who were unfit to post bail and remain confined.
- Legal Aid Defence Counsel Scheme (2022)
Provides free legal services atpre-arrest, remand, trial, and appellate stages, especially for marginalized undertrials.
Conclusion
Significant Variations were made to the bail vittles by Bhartiya Nagarik Suraksha Sanhita in comparison to the Criminal Procedure Code. To insure a clear and terse interpretation of the clause, BNSS handed delineations for bail, bail bond, and bond. Also, BNSS banned bail for rape suspects. Significant variations, particularly for first- time malefactors; further authority for the jail supervisor; and further strict guidelines for
those who are the subject of multitudinous charges and examinations. Compared to the Criminal Procedure Code, which prohibits bail in cases involving rape and gang rape involving minors, Bhartiya Nagarik Suraksha Sanhita made minor changes to anticipant bail. All effects considered, the Bhartiya Nagarik Suraksha Sanhita streamlined the bail laws, made the needed adaptations, and expedited the court system while upholding responsibility.
[1] Which states that every person has the right to life and personal freedom . It protects the basic right to live with dignity and freedom, which includes the right to ask for bail if you are arrested by a police officer
[2] Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 S.C.C. 565 (India).
[3] Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023
[4] Sec.2, Bharatiya Nagarik Suraksha Sanhita, No. 45 of 2023, INDIA CODE (2023).
[5] Hussainara Khatoon v. State of Bihar, (1979) 3 S.C.C. 532 (India).
[6] Moti Ram v. State of M.P., (1978) 4 S.C.C. 47 (India).
[7] Gudikanti Narasimhulu v. Pub. Prosecutor, (1978) 1 S.C.C. 240 (India).
[8] Supreme Court Legal Aid Comm. V. Union of India, (1994) 6 S.C.C. 731 (India).
[9] Code of Criminal Procedure, No. 2 of 1974, sec. 436A (India).
[10] Bharatiya Nagarik Suraksha Sanhita, No. 45 of 2023, sec. 479 (India).
[11] “Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under section 65 and sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023.”
[12] “Where a woman under 18 years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and with fine, or with death.”
[13] “Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.”
[14] Prem Prakash v. Union of India, (2024) 3 S.C.C. 512 (India).
[15] Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 S.C.C. 694 (India).
[16] Parminder Singh v. State of Punjab, (2023) 2 S.C.C. 75 (India).
[17] Suresh Kumar Bhikamchand Jain v. State of Maharashtra, (2013) 3 S.C.C. 77 (India).
Author: Muskan Kumari
Juris Centre 