Bail Under the BNSS: When Does Pre-Trial Detention Become Punishment?

Author

Suneha Goria is a final-year B.A. LL.B. student at NIMS University, Jaipur, Rajasthan.

Introduction

A person is arrested, placed in custody and made to wait for the criminal process to reach its conclusion. At that stage, the court has not yet determined that the person is guilty. Yet, if custody continues for months or years, an important constitutional question arises: when does pre-trial detention, which is intended to serve the interests of justice, begin to resemble punishment itself?

Indian bail jurisprudence has traditionally proceeded on the principle that “bail is the rule and jail is the exception.” The principle was famously expressed by the Supreme Court in State of Rajasthan v. Balchand and has subsequently been developed through decisions concerning personal liberty, fair procedure and speedy trial.¹ It does not mean that every accused person is entitled to release. Rather, it reflects the constitutional importance of liberty and the idea that imprisonment before conviction requires justification.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973 from 1 July 2024, has retained a detailed statutory framework dealing with bail and bonds.² Sections 478 to 496 constitute the principal chapter dealing with bail and bonds, including bail in bailable offences, detention of undertrial prisoners, bail in non-bailable offences, anticipatory bail and the powers of the High Court and Court of Session.

The real question, therefore, is not simply whether the BNSS recognizes the right to seek bail. It is whether the new framework, together with judicial interpretation, sufficiently protects personal liberty when criminal proceedings become prolonged. This article argues that the principle of bail requires courts to look beyond the seriousness of an accusation and examine whether continued detention remains necessary, proportionate and connected with a legitimate purpose of the criminal process.

Understanding “Bail is the Rule, Jail is the Exception”

The expression “bail is the rule and jail is the exception” is sometimes misunderstood as creating an automatic entitlement to bail.

In State of Rajasthan v. Balchand, the Supreme Court explained the basic preference for release rather than imprisonment, while recognizing circumstances in which custody may be justified,³ such as the possibility of fleeing from justice, obstructing the course of justice, repeating offenders or intimidating witnesses. The principle therefore requires a balance between individual liberty and the proper administration of criminal justice.

This approach was further explained in Sanjay Chandra v. Central Bureau of Investigation, where the Supreme Court emphasized that the purpose of bail is not to punish an accused person before conviction.⁴ The seriousness of an accusation is relevant, but it cannot by itself become the sole reason for prolonged pre-trial incarceration.

This distinction is constitutionally significant. Article 21 protects life and personal liberty, and the criminal process must operate through fair, just and reasonable procedure. Bail jurisprudence therefore attempts to ensure that the process of criminal prosecution does not itself become an unintended form of punishment.

What Has the BNSS Changed?

The BNSS regulates bail through Sections 478–483, covering bailable offences, non-bailable offences, anticipatory bail and the powers of the High Court and Court of Session.⁵

The BNSS also contains an important provision concerning undertrial detention. Section 479 deals with the maximum period for which an undertrial prisoner can be detained and provides a statutory mechanism for release in specified circumstances, subject to the conditions contained in the provision.⁶ This is significant because prolonged incarceration cannot be examined only through the lens of whether the offence is bailable or non-bailable. The duration of custody and progress of the proceedings also matter.

At the same time, the BNSS does not transform bail in non-bailable offences into an automatic entitlement. Section 480 contains restrictions and conditions that courts must consider. The law therefore attempts to maintain a balance: liberty is important, but so are the integrity of investigation, appearance of the accused and protection of the administration of justice.

The Research Gap: Is Legal Bail Enough?

A major unresolved issue is the gap between bail as a legal principle and liberty as a practical reality.

Much of the discussion surrounding bail focuses on whether the court should grant or refuse bail. However, the problem does not end there. A person may remain in custody because the bail application is delayed, because the trials progress slowly, or because the conditions imposed after bail are practically difficult to satisfy.

This creates an important research question: Is the protection of liberty meaningful if the criminal process itself takes so long that pre-trial custody begins to have the consequences of punishment?

The problem becomes more serious when the accused has spent a substantial period in custody without a final determination of guilt. The passage of time cannot establish innocence or guilt, but it can alter the proportionality of continued detention.

Therefore, the contemporary debate should move beyond the simple question of whether “bail is the rule.” It should also ask whether continued detention remains necessary at every later stage of the proceedings.

When Does Pre-Trial Detention Become Punitive in Effect?

Pre-trial detention is legally different from punishment. Punishment ordinarily follows a finding of guilt. Pre-trial detention, by contrast, is intended to serve legitimate purposes connected with the criminal process.

These purposes may include securing the accused’s presence, preventing interference with witnesses or evidence, protecting the integrity of investigation and trial, or addressing other legally recognized concerns. The difficulty arises when those purposes become weaker while custody continues.

In Satender Kumar Antil v. Central Bureau of Investigation, the Court addressed concerns relating to arrest, bail and prolonged incarceration and issued directions intended to strengthen the approach towards liberty within criminal proceedings.⁷

The constitutional concern is straightforward: an accused person has not yet been convicted. If the trial is delayed for reasons unrelated to the accused, continued custody deserves careful judicial examination.

The 2026 Supreme Court Development

The constitutional importance of the bail principle was reaffirmed by the Supreme Court in Syed Iftikhar Andrabi v. National Investigation Agency, Jammu, decided on 18 May 2026.⁸

The case involved restrictions on bail under the Unlawful Activities (Prevention) Act, 1967. The appellant had been in custody since June 2020, and the Supreme Court reaffirmed that “bail is the rule and jail is the exception” reflects a constitutional principle connected with Articles 21 and 22. At the same time, the Court recognized that special statutes may impose stricter bail restrictions.⁹

This decision is important because it demonstrates that the constitutional value of liberty does not disappear merely because the prosecution arises under a stringent statute.¹⁰ However, it also does not mean that special statutory restrictions can simply be ignored. The judicial task is therefore one of constitutional balancing.

Serious Allegations Versus Personal Liberty

There is a strong argument that accused persons in serious offences should remain in custody because release may create risks of absconding, witness intimidation, destruction of evidence or interference with the investigation.

These concerns cannot be dismissed. A criminal justice system must protect the integrity of its proceedings and the safety of those involved.

However, there is a difference between considering the seriousness of an offence and treating seriousness as conclusive proof that detention is necessary.

A proper bail decision should consider the circumstances of the individual case; the nature of the accusation, the material available at that stage, the possibility of the accused fleeing, the likelihood of influencing witnesses or obstructing justice, previous conduct relevant to the proceedings, the period already spent in custody and the likely progress of the trial.

The better approach is therefore neither unconditional release nor automatic detention. The question should be whether continued custody is necessary and proportionate to a legitimate purpose of the criminal process.

Bail Granted on Paper, But Not in Reality

Another practical difficulty receives comparatively less attention: the difference between being granted bail and actually obtaining release.

A court may grant bail while imposing conditions relating to sureties, bonds, appearance or other safeguards. For an economically vulnerable accused, a condition that is technically lawful may nevertheless be extremely difficult to satisfy.

This is why Section 484 of the BNSS, which deals with the amount of bond and reduction thereof, is relevant to the larger question of meaningful liberty. If bail is legally granted but cannot realistically be secured, the distinction between “bail granted” and “person actually released” becomes important.¹¹

The objective should therefore not merely be to formulate conditions that appear protective on paper. Conditions should also be proportionate to the legitimate concern they are intended to address.

Critical Analysis and the Way Forward

The BNSS provides an organized statutory framework, but the existence of statutory provisions alone cannot solve the problem of prolonged pre-trial detention.

First, courts should give clear and case-specific reasons when continued custody is considered necessary.

Second, the length of custody should receive increasing significance as proceedings continue, particularly where the delay is not attributable to the accused.

Third, bail conditions should be proportionate to the concern they are intended to address and should be realistically capable of compliance.

Fourth, courts should remain conscious that prolonged custody can produce consequences that cannot be completely reversed later, including disruption of employment, family life and social standing.

Finally, the principle of “bail is the rule and jail is the exception” should be understood not as a slogan but as a conditional discipline. It requires courts to continually ask why liberty must be restricted and whether that restriction remains necessary.

Conclusion

The central question in bail jurisprudence is not whether an accused person deserves punishment. Before conviction, that question has not yet been judicially answered. The immediate question is whether keeping the person in custody is necessary for the fair administration of justice.

The BNSS provides a structured framework for bail, but legislation alone cannot resolve the deeper problem of prolonged pre-trial detention. The effectiveness of the framework depends upon how courts balance personal liberty with legitimate concerns such as the accused’s appearance, protection of evidence, witness security and the integrity of the trial.

The principle that “bail is the rule and jail is the exception” should therefore not be reduced to a catchy judicial phrase. Its real significance lies in preventing the criminal process from turning accusation into punishment before guilt has been established.

A fair criminal justice system must protect society from crime while also protecting individuals from unnecessary deprivation of liberty. The challenge under the BNSS is to maintain that balance without allowing pre-trial custody to become punishment in everything but name.

Bibliography

1. State of Rajasthan v. Balchand, (1977) 4 SCC 308.
2. The Bharatiya Nagarik Suraksha Sanhita, 2023, No. 46 of 2023, India Code (enacted Dec. 25, 2023; enforced July 1, 2024).
3. State of Rajasthan v. Balchand, (1977) 4 SCC 308.
4. Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40.
5. The Bharatiya Nagarik Suraksha Sanhita, 2023, §§ 478, 480, 482–83.
6. Id. § 479.
7. Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51.
8. Syed Iftikhar Andrabi v. National Investigation Agency, Jammu, 2026 INSC 503 (Supreme Court of India, May 18, 2026).
9. Id.
10. Id.
11. The Bharatiya Nagarik Suraksha Sanhita, 2023, § 484.