INTRODUCTION
The Indian criminal justice system operates on the basic principle that an accused person in any offence is presumed innocent until proven guilty.[1] This presumption, although not expressed anywhere in the provisions of the Indian Constitution, arises from Article 14, Article 21, and Article 22[2], which together serve to ensure that an individual is not arbitrarily detained and that no one’s life and liberty can be taken away without following due process of law. The mechanism that ensures such constitutional promises is bail in the Indian legal system.[3]
The process for bail in India has been incorporated in the Code of Criminal Procedure, 1973, and it is currently being gradually superseded by the Bharatiya Nagarik Suraksha Sanhita, 2023. The process involves the classification of crimes as bailable and non-bailable crimes. When the offence is a bailable crime, bail has been deemed to be an absolute right.[4] When the offence is a non-bailable crime, then bail is discretionary based on some factors, including the nature of the charges, previous behaviour of the offender, likelihood of escape, and endangerment of witnesses. However, the exercise of discretion needs to be carried out in a manner that respects fundamental principles enshrined in the Constitution. Against this background, the issue of what would happen in the event of a delay in the trial process, without the fault of the accused, has become a vital question in the jurisprudence of criminal law in India. There are millions of undertrial offenders held in Indian prisons at any point in time, who have been awaiting their trial and conviction for many years now.[5]
THE LEGAL FRAMEWORK: BAIL UNDER INDIAN LAW
The Code of Criminal Procedure, 1973, establishes the basic principles in respect of the granting of bail and denial of bail. Section 436 stipulates that there exists an absolute right to obtain bail for bailable offences.[6] Section 437 provides that bail can be granted in respect of non-bailable offences, except in circumstances of certain restrictions.[7] It especially relates to offences for which the death penalty and life imprisonment could be imposed. Section 439 provides concurrent jurisdiction to the Sessions Court and High Court in granting bail in any case, including in cases where bail has been denied in a lower court.[8]
An important provision in this regard is Section 436A, added to the code through an amendment in 2005.[9] The provision states that an undertrial who is imprisoned for a period of more than half of the maximum period of imprisonment prescribed for that offence shall be set free on bail. This is essentially recognition in the statute that prolonged detention while awaiting trial amounts to a violation of fundamental rights, which need to be remedied.[10]
Bharatiya Nagarik Suraksha Sanhita, 2023, which replaces the old Code of Criminal Procedure, has retained the provisions related to bail with some changes. The concept contained in Section 436A remains intact in the new statute. There has been no change in the constitutional considerations that underlie the law on bail in India due to the change from one code to another.
THE ROLE OF SECTION 436A AND ITS PRACTICAL LIMITATIONS
Section 436A of the Code of Criminal Procedure was indeed intended to be a legislative measure in the right spirit, but the impact of the section has largely remained constrained due to several reasons. To start with, undertrial prisoners are hardly aware of this provision, especially those without access to any legal aid service. Several people who fall within the ambit of such provisions continue to be detained merely because of the absence of an application for them.
The second reason concerns the exclusion of offences that carry capital punishment. Though such a provision cannot be considered unreasonable per se, the result of such exclusion is that many people charged with very serious offences are out of reach of the provisions of this section. Another important point that deserves to be mentioned is that courts have taken some time to initiate suo motu proceedings regarding entitlements of undertrials despite such provisions existing.
Periodic efforts by the National Legal Services Authority and State Legal Services Authorities to discover undertrial prisoners eligible for release under Section 436A have been successful in securing the release of many prisoners. Nonetheless, this problem is much bigger in magnitude than what an occasional measure can handle. A more systematic arrangement needs to be put into place, whereby cases falling within the purview of the provision receive regular attention and consideration.
JUDICIAL RESPONSIBILITY AND THE ACTIVE ROLE OF COURTS
Indian courts hold a peculiarly important place in relation to bail and trial delays on account of both their constitutional status as protectors of fundamental rights and their managerial functions within the trial system. Article 32 of the Constitution gives the Supreme Court of India jurisdiction to act when there has been any violation of a fundamental right, while similar jurisdiction is conferred on High Courts under Article 226 of the Constitution.[11] When pre-trial detention becomes unjustified because it has become excessively long without any fault on the part of the accused, that is the very situation that warrants action under these Articles.
Magistrates and sessions judges sitting at trial courts also have powers, as well as a duty to consider the nature of the trial process more actively. When a case comes to trial only after a lengthy delay owing to factors inherent in the criminal process, then the trial court must itself consider bail issues about the accused. It would amount to judicial negligence for the court not to do so because the accused is either unable or unaware of making the appropriate application himself.
High Courts can play a vital role in the process of revision and the issue of writs. They may review the number of undertrials periodically, instruct trial courts to dispose of matters swiftly if there have been delays in bringing the cases to trial, and examine applications for bail in the context of delays in the case. Article 21 of the Constitution does not operate automatically; its implementation depends on judicial action.
REFORMING THE SYSTEM: LEGISLATIVE AND ADMINISTRATIVE MEASURES
Solving the problem of bail and trial delay in India will require reforms at various levels. Firstly, there is a need to look into the tough conditions of bail in the special laws from the point of view of the right to personal liberty as enshrined in the Constitution of India. It appears that when certain provisions make bail virtually impossible without proper provisions being made for a speedy trial, the effect is punishing an individual before conviction.[12]
Secondly, there is an urgent need to fill vacancies in the subordinate courts. Establishment of Fast Track Courts, which have already proven to be successful in practice, is recommended for dealing with undertrial prisoners, who are in jails for too long. Thirdly, the capacity of Forensic Science Laboratories should be increased to avoid unnecessary delays with forensic reports.
Reform of the surety system should be emphasised as well. A system that makes a person’s liberty contingent upon his ability to find a solvent surety is a discriminatory system that unfairly targets the poor.[13] Methods like the personal bond release scheme, supervised release program, and other community supervision devices should be taken into account as additions to the current surety system. The High Court, in fact, has already done so in liberalising the terms of the bail order, and these should be standardised.
CONCLUSION
The relationship between bail laws and delays in trials is among the biggest problems of justice in the criminal justice system of India. It refers to an accused who is held in custody without their fault, whose trial is delayed owing to structural deficiencies of the criminal justice system, which do not have anything to do with the accused but which prevent the state from holding a fair trial in due time. In the process of it, the state accuses the person, holds them in custody, and delays the trial, while the accused remains absolutely helpless at all stages.
In the context of the problem in question, the Indian Constitution, particularly Article 21 and the right to a speedy trial, plays a vital role.[14] So does the Code of Criminal Procedure and, specifically, Section 436A, together with the general bail provisions provided by it. What is needed, in addition, is the readiness of the stakeholders in the criminal justice system to appreciate the value of personal liberty of the undertrial accused.
Author: Sanchi Soni (Osmania University College of Law, Hyderabad)
References:
[1] Woolmington v DPP [1935] AC 462 (HL)
[2] Constitution of India, 1950, Arts. 14, 21, 22
[3] State of Rajasthan v Balchand (1977) 4 SCC 308
[4] Rasiklal v Kishore Khanchand Wadhwani (2009) 4 SCC 446
[5] National Crime Records Bureau, Prison Statistics India 2024 (Ministry of Home Affairs, Government of India 2026)
[6] Code of Criminal Procedure 1973, s 436
[7] Code of Criminal Procedure 1973, s 437
[8] Code of Criminal Procedure 1973, s 439
[9] Code of Criminal Procedure 1973, s 436A
[10] Supreme Court Legal Aid Committee v Union of India (1994) 6 SCC 731
[11] Constitution of India 1950, arts 32 and 226
[12] Union of India v K A Najeeb (2021) 3 SCC 713
[13] Moti Ram v State of Madhya Pradesh (1978) 4 SCC 47
[14] Hussainara Khatoon v State of Bihar (1980) 1 SCC 81
