Bail Is the Rule, Jail the Exception — So Why Are 4 Lakh Undertrials Still in Prison?

In 1977 Justice Krishna Iyer wrote that the basic rule may be tersely put as bail, not jail. The Supreme Court has said it again in every decade since — in Hussainara Khatoon, in Sanjay Chandra, in Arnesh Kumar, in Satender Kumar Antil, and in 2024 in cases under the money laundering and anti-terror laws where the principle was thought not to reach. No judgment has contradicted it. No court is permitted to disagree with it. And on the latest count, more than four lakh people are in prison awaiting trial, three-quarters of all prisoners, most of them accused of offences for which the law says arrest itself should be exceptional. A rule that is restated for fifty years and never followed is not a rule. It is a sentiment.

Where the principle fails

It does not fail in the Supreme Court, which grants bail in most of the cases that reach it, or in the High Courts, which grant it in many. It fails in the magistrate's court, on the first morning, when the accused is produced from the police station without a lawyer and the prosecutor asks for remand as a matter of form. The order is a stamp. The next hearing is fourteen days away. By the time the application for bail reaches a sessions court, and then the High Court, months have passed; by the time it reaches the Supreme Court, years. The system's bail jurisprudence is made at the top and applied at the bottom, and the bottom has never received the message.

Why the bottom refuses

1. The incentives run one way. A magistrate who releases an accused who absconds or reoffends is questioned, transferred, or named in a High Court order. A magistrate who refuses bail is never questioned by anyone, because the refusal is corrected, if at all, by a higher court months later, with no consequence for the court below. Refusal is the safe decision for everyone except the accused.
2. The prosecutor always objects. Opposition to bail is routine, unreasoned and costless. No prosecution office keeps data on how many of its objections were overturned.
3. Special statutes set the tone. The twin conditions in the money laundering, anti-terror and narcotics laws — that the court be satisfied the accused is not guilty before releasing him — were meant for a narrow class of cases. They have become the default mental model for every bail hearing, so that an accused in an ordinary theft case is asked, in effect, to prove innocence to be released.
4. The surety. Bail is granted and the accused stays in jail, because the order requires a surety of ₹50,000 and a local property owner, and the accused is a migrant worker with neither. Hussainara Khatoon said in 1979 that the poor should be released on personal bonds. It is the least implemented direction in Indian criminal law.
5. No one is counting. No court in the country can tell you, without a special exercise, how many undertrials before it have crossed the one-third or one-half mark under the statutory release provisions. The e-prisons database knows; the courts' case management system does not ask it.

A rule that is restated for fifty years and never followed is not a rule. It is a sentiment.

Harsh Vardhan

What the Supreme Court has already tried

Arnesh Kumar directed police not to arrest for offences under seven years without recorded reasons and directed magistrates not to authorise detention mechanically, with contempt for breach. Satender Kumar Antil laid down categories, directed bail on first production in some, and asked for a bail Act. The 2024 order on Section 479 of the new code directed jails to identify eligible undertrials and courts to release them. Each produced a burst of releases and then the old equilibrium. The directions were addressed to institutions whose incentives they did not change.

What would change the incentives

• Count reversals. Publish, for every magistrate and sessions judge, the number of bail refusals overturned on appeal, as the High Courts publish disposal statistics. What is measured is managed; refusal is currently unmeasured.
• Make remand a decision. Require a reasoned order, on a form, for every first remand, recording why the Arnesh Kumar conditions are met; an unreasoned remand should be a ground for release, not merely for appeal.
• A lawyer at first production. Legal aid counsel in every remand court, every day, paid per day and not per appearance, so that the first hearing is a hearing.
• Personal bonds by default. For offences under seven years, a personal bond unless the court records why a surety is needed; where a surety is ordered and not furnished within a week, an automatic review. The draft bail bill proposes this; it should be the first provision enacted.
• Connect the databases. A flag on the court's file when an undertrial crosses the statutory threshold, generated from the prison system, with a duty on the court to pass orders within a week.
• Confine the twin conditions. A statutory statement that the special-statute tests apply only to offences under those statutes, and that the ordinary presumption applies to everything else — not because courts do not know it, but because the lower courts need to be told by Parliament, not by a judgment they will not read.

The principle does not need restating. It needs a mechanism, and the mechanism is not another judgment. It is a change in what happens to the magistrate who refuses, the prosecutor who objects and the jailer who does not report — the three people whose decisions, repeated four lakh times, are the reason the exception became the rule.

Harsh Vardhan reports on legislation, the law ministry and judicial appointments. Read The Counsel's report on the draft bail reform bill.

Opinion pieces reflect the views of their authors and not necessarily those of The Counsel. This article is for general information only and does not constitute legal advice. Readers should consult a qualified lawyer about their own circumstances.