This Article is written byParomita De. She is a final-year law student with a specialised interest in criminal justice and constitutional law. She is committed to analysing and elucidating contemporary legal reforms within India’s judicial system.

Introduction

The concept of Bail remains one of the most vital safeguards of personal liberty in India’s criminal justice system. Under the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS), the law on bail has undergone significant refinement, aligning procedural safeguards with the spirit of the Constitution and ensuring a balance between individual rights and the interests of justice.

Evolution under BNSS, 2023

The BNSS replaces the Code of Criminal Procedure, 1973 (CrPC) while retaining the foundational principle that bail is the rule and jail is the exception. The new law emphasizes procedural efficiency, transparency, and judicial accountability to prevent unnecessary incarceration and delays in adjudication.

The reforms reaffirm Article 21 of the Constitution, which guarantees the right to life and personal liberty. Bail continues to be recognized not as a privilege but as a fundamental safeguard, ensuring that liberty is not curtailed without legal justification.

Types of Bail Recognized under BNSS

1. Regular Bail – Granted after arrest when the accused is already in custody.
2. Anticipatory Bail – Granted under Section 482 of the BNSS to protect individuals who apprehend arrest for a non-bailable offence.
3. Default Bail – Also known as statutory bail, granted when the investigating agency fails to file the charge sheet within the prescribed period.

Judicial Perspective and Key Judgments

In Satender Kumar Antil v. Central Bureau of Investigation (2022 SCC OnLine SC 825), the Supreme Court emphasized that bail should not be withheld as a punitive measure. The Court observed that “liberty should not be sacrificed at the altar of procedural delays.” Similarly, in Hussainara Khatoon v. State of Bihar (1979 AIR 1369), the Court held that detention without trial violates Article 21, recognizing the right to a speedy trial as an essential component of personal liberty.

Discretion and Judicial Safeguards

The BNSS preserves judicial discretion while ensuring it is exercised in accordance with fairness and reasonableness. Courts are required to assess:

• The nature and gravity of the offence;
• The possibility of the accused tampering with evidence;  The likelihood of absconding; and
• The accused’s antecedents and conduct.

Discretion must not be arbitrary — it must uphold the constitutional guarantee of equality before law and due process.

Technological and Procedural Reforms

The BNSS introduces digital innovation in bail processes — including electronic filing of bail applications, virtual hearings, and digital service of summons. These reforms aim to reduce delays, ensure greater accessibility, and promote transparency in judicial administration.

Balancing Liberty and Justice

While bail protects liberty, it is not absolute. Courts must maintain equilibrium between individual rights and public interest. The new law mandates that every bail order — whether granting or rejecting — must include recorded reasons, ensuring judicial transparency and accountability.

Conclusion

The bail provisions under the Bhartiya Nagrik Suraksha Sanhita, 2023 reflect a progressive and rights-based approach to criminal justice. The law harmonizes constitutional values, procedural fairness, and human rights, ensuring that liberty is preserved without undermining justice.

Bail is not a privilege; it is a constitutional promise — that no person shall lose freedom except through a fair, just, and lawful process. The BNSS, through modernization and clarity, marks a significant step toward a more accessible, transparent, and efficient justice system.

Citations

1. Satender Kumar Antil v. Central Bureau of Investigation, 2022 SCC OnLine SC 825.
2. Hussainara Khatoon v. State of Bihar, 1979 AIR 1369.