Undertrial Prisoners in India: Bail Reform Bill Proposes Automatic Release After One-Third of Maximum Sentence

NEW DELHI — The Union Law Ministry has circulated for consultation a draft Bail Bill that would, for the first time, write into statute a presumption in favour of bail for offences punishable with up to seven years' imprisonment and require the automatic release of undertrials who have spent one-third of the maximum sentence in custody. The draft answers a request the Supreme Court made in 2022 for a separate bail law, and arrives as prison statistics show undertrials at more than three-quarters of a prison population that exceeds capacity by nearly a third.

"The presumption of innocence has a price. For undertrials, it is years of their lives," a former Law Commission member who worked on the earlier recommendations told The Counsel.

The numbers

The National Crime Records Bureau's prison statistics count more than 5.7 lakh prisoners in Indian jails, of whom more than 4.3 lakh — about 76 per cent — are undertrials. Occupancy runs at about 131 per cent of sanctioned capacity nationally and far higher in Uttar Pradesh, Delhi and Bihar. A majority of undertrials are accused of offences carrying a maximum sentence of less than seven years, for which the law already says arrest should be the exception; many have been inside longer than any sentence they could receive on conviction, and a significant number have bail orders they cannot act on because they cannot find a surety.

The law as it stands

• Arrest. Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023, carrying forward Section 41 of the old Code and the Supreme Court's directions in Arnesh Kumar v. State of Bihar (2014), bars arrest for offences punishable with up to seven years unless the officer records reasons showing it is necessary.
• Release after a period. Section 479 of the BNSS requires release on bond once an undertrial has served half the maximum sentence, or one-third for a first-time offender, excluding offences punishable with death or life and persons facing multiple cases. The jail superintendent must apply to the court when the period is reached. The Supreme Court in 2024 directed the provision to be applied to all pending cases.
• Bail guidelines. In Satender Kumar Antil v. CBI (2022) the Supreme Court laid down categories of offences and directions for bail at each stage, reiterated that bail is the rule, and asked the Union to consider a separate bail enactment on the lines of the United Kingdom's Bail Act.
• The Law Commission. Its 268th report (2017) recommended a presumption of bail for offences punishable with up to seven years, limits on the duration of pre-trial detention, and an end to monetary sureties for the poor.

What the draft bill proposes

1. A presumption of bail. For offences punishable with imprisonment of up to seven years, bail would be the default, refusable only on recorded grounds: a real risk of flight, of tampering with evidence or witnesses, or of repeating the offence. The burden of showing a ground would lie on the prosecution.
2. Automatic release at one-third. The one-third rule would apply to every undertrial, not only first-time offenders, and the exclusion for persons facing more than one case would go; only offences punishable with death or life imprisonment would be outside it. Release would be on a personal bond, and the superintendent's application would be replaced by a duty on the court to pass orders on the jail's periodic report.
3. Sureties within means. No monetary surety could be set beyond what the accused can demonstrably furnish, and personal bonds would be the norm for offences under seven years. Where a surety cannot be found within a week of a bail order, the court would be required to modify the conditions.
4. Standard conditions. A schedule of permissible bail conditions, replacing the open-ended conditions that have produced orders requiring accused persons to deposit money, surrender passports in petty cases or report daily to police stations.
5. Time limits. Bail applications to be decided within seven days by a magistrate and fourteen days by a sessions court or High Court, with reasons.
6. Special statutes. The presumption would not apply to offences under statutes with their own bail restrictions, such as the narcotics and anti-terror laws, but the one-third rule would, subject to the death-or-life exclusion.

The presumption of innocence has a price. For undertrials, it is years of their lives.

A former Law Commission member, to The Counsel

Why reform has stalled before

The obstacles are familiar. State governments, which run prisons and police, have resisted presumptions that limit their discretion over public-order offences. Investigating agencies have argued that economic offenders and organised crime accused would exploit any presumption. And the statutory limits that already exist have gone unused: Section 436A of the old Code, which allowed release after half the maximum sentence from 2005, was invoked in a tiny fraction of eligible cases because no one — not the prisoner, not the jail, not the court — had a duty to raise it. Section 479 added the superintendent's duty; the bill would add the court's.

What the draft does not address

• Trial delay. A presumption of bail reduces pre-trial custody; it does not shorten trials. The time limits in the BNSS for charge, documents and judgment remain the only levers on duration, and compliance is uneven.
• Legal aid. Most undertrials are represented, if at all, by legal services lawyers who are paid per appearance; the bill creates rights without funding the lawyers who would assert them.
• Data. No system tells a court, without being asked, how long each undertrial before it has been in custody. The e-prisons database can, but it is not connected to the case management systems the courts use.

What happens next

The ministry has sought comments from High Courts, state governments and bar bodies. The Supreme Court, which has kept Satender Kumar Antil pending for monitoring, is likely to ask for the government's timeline at its next hearing. A bill of this kind requires concurrence from states on criminal procedure, which both the Union and the states can legislate; the political arithmetic, rather than the legal, will decide whether it is introduced in the budget session.

The Counsel will publish the draft bill's text and the consultation responses as they become available. Families of undertrial prisoners can seek help from the district legal services authority, which is required to review undertrial cases through its prison visits and undertrial review committees.

This report is for general information only and does not constitute legal advice. Readers should consult a qualified lawyer about their own circumstances. Case citations are to The Counsel Reports (TCR) unless otherwise stated.