Bail And Personal Liberty Under Indian Criminal Law: A Constitutional and BNSS Perspective

ABSTRACT

Bail jurisprudence in India lies at the intersection of criminal procedure and the constitutional guarantee of personal liberty under Article 21. Because pre-trial detention precedes any determination of guilt, it raises enduring questions of presumption of innocence, fair procedure and speedy trial. From the Supreme Court’s foundational declaration in State of Rajasthan v. Balchand that “bail is the rule and jail is the exception,” through Maneka Gandhi v. Union of India, Hussainara Khatoon v. State of Bihar and Satender Kumar Antil v. CBI, Indian courts have progressively transformed bail from a discretionary concession into a constitutional entitlement bounded by identifiable justifications. The replacement of the Code of Criminal Procedure, 1973 by the Bharatiya Nagarik Suraksha Sanhita, 2023 has altered the statutory landscape, most significantly through Section 479’s differentiated release threshold for first-time offenders. Yet special statutes such as the Prevention of Money Laundering Act, 2002, the Unlawful Activities (Prevention) Act, 1967 and the Narcotic Drugs and Psychotropic Substances Act, 1985 continue to impose stringent conditions that sit uneasily with Article 21 – a tension recently addressed by the Supreme Court in Manish Sisodia v. Directorate of Enforcement and Javed Gulam Nabi Shaikh v. State of Maharashtra. This paper argues that statutory reform under the BNSS is a necessary but insufficient response to India’s undertrial crisis, and that a durable solution requires courts, investigating agencies and prison administration to internalise a constitutional culture in which detention before conviction remains the exception it was always meant to be.