The bail jurisprudence in India is based on the premise that bail is the rule, jail is the exception as observed in the case of Gudikanti Narasimhulu v. Public Prosecutor^[i]. This principle originates from Article 21 which stipulates that any restraint on liberty of the individual must be balanced on just, fair and reasonable procedure (Due process guarantee) which was incorporated in the constitution by the supreme court in the case of Maneka Gandhi v. Union of India. ^[ii] Bail doctrine is therefore not a matter of discretion under the statutory provision but a concern of constitutional morality.

The prejudice of the under trail detention was highlighted in the case of Hussainara Khatoon v. State of Bihar ^[iii] and the right to speedy trial was read into the ambit of Article 21 whereby the pre-trail custody was put under a constitutional microscope. In the following decades, the case of Sanjay Chandra v. CBI ^[iv] affirmed that pre-trail incarceration is not a substitute for punishment. Cumulatively, these precedents establish the constitutional vocabulary for bail i.e., presumption of innocence, judicial discretion founded on liberty and closer scrutiny of any law that regularizes pre-trail detention.

The Structural Shift: The re-engineering of bail

A substantial doctrinal shift emerges when bail is explored under the special statues rather than the standard criminal procedure under BNSS such as Narcotic Drugs and Psychotropic Substances Act, 2002, the Unlawful Activities (Prevention) Act, 1967 and the Prevention of Money Laundering Act, 2002 comprise of non-obstante clauses that overtly override regular bail provisions. These clauses substitute the judicial discretion guided by principles of liberty with statutory barriers like twin conditions whereby courts have to satisfied of the innocence of the accused at the bail stage along with reassurance that the person is not likely to commit an offence while on bail (NDPS and PMLA) or a complete bar where the accusations appear to be prima facie true (UAPA)

The consequences are foundational and not merely superficial. The bail hearing, which is to be restricted to the question of bail assumes the role of a preliminary adjudication of guilt whereby the burden is shifted onto the accused at the pre-trail stage. Judicial lens is limited to verification on persecution contentions rather than scrutinizing them. The conclusion is a co-existing parallel procedure that dilutes the presumption of innocence and the constitutional favor towards liberty is replaced by a statutory leaning towards perpetual custody.

NDPS – Section 37 and The Presumption Against Bail

Bail under the NDPS, 1985 is dealt with under Section 37 which is a provision that substantially departs from the crystalized principles laid down under criminal procedure. It is framed with a non-obstante clause which imposes twin conditions which need to be satisfied in order to obtain bail.

First, the existence of reasonable grounds which speak to the accused innocence must be shown. This makes the bail stage a preliminary exploration into the merits of the case and it has been reaffirmed by the court in the case of Union of India v. Shiv Shanker Kesari ^[v] among other judgments as well that there must be an exploration into the existence of substantial probable cause and whether the accusations are credible. The stringency of the section does not allow a liberal bail approach and the not- guilty test must be satisfied as held in the case of State of Kerala v. Rajesh ^[vi]  Second, the court must be satisfied that the accused is not likely to commit any offence while on bail. The parameters to be considered are antecedents, role and surrounding circumstances to assess the likelihood of reoffending.^[vii]

However, constitutional divergence has appeared whereby the court has held that in cases of elongated incarceration and trail delay, the provision cannot justify indefinite custody. In the case of NCB v. Lakhwinder Singh ^[viii] whereby the court recognized that extended incarceration justifies bail regardless of the provision. Various high courts have also ruled along this lines and bail is unfettered by the rigors of this provision if Article 21 is implicated.

PMLA – Section 45 and the Structure of Presumed Guilt.

Bail under the PMLA Act, 2002 is governed by Section 45, which is akin to section 37 of the NDPS act as it also imposes the identical twin conditions on bail namely proof of innocence and the improbability of commission of offence while on bail via a non obstante clause. This prerequisites tentative proof of innocence at the onset of proceeding which is a stark departure from ordinary criminal procedure principles centered around flight risk and chances of witness tampering.

In the case of Nikesh Tarachand Shah v. Union of India ^[ix] the apex court held the section to be violative of the fundamental rights envisaged under Article 14 and 21 as it reverses presumption of innocence by imposing the twin conditions. However, the position was significantly shifted in the case of Vijay Madanlal Choudhary v. Union of India ^[x] whereby the court upheld the amended provision by stating that the magnitude and cross-border nature of money laundry provided grounds for stringent bail standards.

When this provision is read in combination with Section 71, which gives the statue overriding effect, it becomes clear that it operates in isolation from the criminal procedures set down in BNSS. The chasm is wide as it purposes that the accused must on the onset disprove guilt before ensuring liberty.

Therefore, the statue curates an institutionalized model whereby the presumed guilt becomes a structural feature rather than an exception.

UAPA: Section 43D (5) and the suspension of judicial scrutiny

Under this statue, the bail is governed by Section 45(5)(D) which puts a bar on bail if there are reasonable grounds to believe that the accusations against the accused appear to be prima facie true. The provision is an overriding clause which acutely narrows down the leeway for judicial scrutiny at the pre-trail stage. In contravention of general principles, the courts instead of questioning the prosecution’s material, have to accept it on face value as long as a plausible accusation can be disclosed.

This approach was crystalized in the case of National Investigation Agency v. Zahoor Ahamed Shah Watali ^[xi] where the supreme court held that courts are not to consider the defense evidence at this stage. The role of the courts is limited to a superficial examination of the charge sheet to conclude whether the allegations appear credible. The practical implications are profound as any form of exculpatory material is irrelevant at this stage which least to an effective deferral of the presumption of innocence until the trial stage.

However, the constitutional friction arose in the case of Union of Indiia v. K.A. Najeeb, [xii]whereby the court held that prolongation of trial and the elongated detention permit bail regardless of the provision as Article 21 cannot be eclipsed by statutory restrictions.

Therefore, a contradiction in UAPA bail jurisprudence emerges as Watali effectively suspends judicial scrutiny while Najeeb infuses principles of constitutional liberty.

A Parallel Order

Across the provisions of these three acts, bail has been effectively redesigned to revolve around suspicion rather than liberty. Each statue deployed a non-obstante clause, employs higher bail thresholds and transforms the judicial duty from protector of liberty to inquisitor of guilt at the pre trail stage.

As mentioned above the interpretations given by the apex court in various entrenches this structure. Cumulatively, the impact of the statue and the judicial decisions give rise to a parallel form of procedural order whereby suspicion dethrones liberty.

However, Article 21 has time and again acted as the mediator between these two parallel orders as observed in the case of Lakwinder Singh and Najeeb whereby the court conclusively stated that elongated detention in face of delayed trail proceeding override the provisional requirements as the constitutional principles which are the grundnorm operate and the unrestrained rigors of these detention provisions become excessive and non-operative when the rights under Article 21 are in question.

^[i] Gudikanti Narasimhulu v. Public Prosecutor, 1978 AIR 429

^[ii]  Maneka Gandhi v. Union of India, 1978 AIR 597

^[iii] Hussainara Khatoon v. State of Bihar, 1979 AIR 1369

^[iv] Sanjay Chandra v. CBI AIR 2012 SUPREME COURT 830,

^[v] Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798

^[vi] State of Kerala v. Rajesh AIR 2020 SC 721

^[vii] Union of India v. Rattan Mallik @ Habul, 2009 (2) SCC 624

^[viii]  NCB v. Lakhwinder Singh 2025 LiveLaw (SC) 191

^[ix] Nikesh Tarachand Shah v. Union of India, AIR 2017 SC 5500

^[x] Vijay Madanlal Choudhary v. Union of India , (2022) SCC OnLine SC 929

^[xi] National Investigation Agency v. Zahoor Ahamed Shah Watali AIR 2019 SUPREME COURT 1734,

[xii] Union of Indiia v. K.A. Najeeb AIR 2021 SC 712