Abstract

Bail jurisprudence in India operates at the fault-line between the State’s coercive authority and the individual’s constitutional entitlement to personal liberty. While the Supreme Court has consistently recognised bail as a constitutional safeguard rather than a mere procedural concession, contemporary practice reveals a system marked by doctrinal fragmentation and institutional unpredictability. This article argues that judicial discretion in bail adjudication has evolved into a source of constitutional uncertainty, thereby undermining the guarantees of equality and due process under Articles 14 and 21. Through an examination of doctrinal divergences, statutory constraints under special laws such as the PMLA and UAPA, and the transition to the BNSS, the article contends that systemic unpredictability in bail outcomes constitutes a constitutional infirmity in itself. The analysis concludes by proposing the need for structured discretion to restore doctrinal coherence.

Bail as a Constitutional Function

Bail is not merely a procedural incident of the criminal process; it is the operational site where the Constitution’s promise of liberty is either realised or negated. Article 21’s guarantee against the deprivation of personal liberty, since the watershed moment of Maneka Gandhi v. Union of India, has been understood to incorporate substantive requirements of fairness and non-arbitrariness. Consequently, bail jurisprudence cannot be insulated from constitutional scrutiny by relegating it to the realm of “mere” procedure.

In the early decades of the Republic, judicial formulations reflected a clear constitutional orientation. In State of Rajasthan v. Balchand, Justice Krishna Iyer famously articulated that “the basic rule may perhaps be tersely put as bail, not jail,” underscoring that deprivation of liberty prior to conviction is an exceptional measure and it cannot be a norm. Similarly, in Gudikanti Narasimhulu v. Public Prosecutor, the Court emphasised that personal liberty under Article 21 is “too precious a value of our constitutional system” to be curtailed casually, and that the power to deny bail is a “great trust” which must be exercised judicially, with due regard to the cost of incarceration to both the individual and the community. These were not just prudential guidelines; they were anchored in the belief that the State must justify every minute an unconvicted citizen spends behind bars.

However, looking at the legal landscape today, we see a departure from this constitutional grammar. Bail adjudication has drifted away from principled application toward a culture of variable judicial intuitions. The liberty spoken of in high constitutional terms often appears disconnected from the reality of the Magistrate’s courtroom.

Judicial Discretion and Its Doctrinal Displacement

Judicial discretion is often defended as a tool for equity, allowing judges to adapt the law to the complex variations of human conduct. Yet, for discretion to be legal rather than personal, it must be guided by principles that make its exercise predictable.

In the context of bail adjudication in India, this requirement of predictability has progressively weakened. It is a common, if uncomfortable, observation in the Bar that a bail application’s success often depends more on the philosophy of the bench than on the facts of the case. This concern is also noted in scholarly analyses of bail adjudication highlighting inconsistency and heavy reliance on subjective judicial discretion.^[i] Identical factual matrices yield divergent outcomes across different courts. This occurs because there is no settled hierarchy between competing values. When does the gravity of the offence outweigh the right to a speedy trial? When does a vague invocation of societal interest override the presumption of innocence?

The result is a phenomenon where bail becomes contingent upon interpretive predispositions.^[ii] When law becomes this subjective, it ceases to operate as a rule-governed order and begins to resemble a radically indeterminate system. This raises serious questions about constitutional legitimacy.

The Shadow of Special Statutes: Structural Reconfiguration

The crisis of doctrinal coherence is most acute in the operation of special penal statutes such as the Unlawful Activities (Prevention) Act and the Prevention of Money Laundering Act. These laws have effectively re-engineered the bail hearing, pushing the presumption of innocence to the margins of practical operation.

Under Section 43D(5) of the UAPA, bail is barred if the court finds the accusation to be prima facie true. In NIA v. Zahoor Ahmad Shah Watali, the Supreme Court instructed lower courts to accept the prosecution’s case at face value at the bail stage. This has transformed the bail hearing into a largely formalistic exercise. If the police assert that the accusation is true, and the court is institutionally discouraged from scrutinising the evidence with a critical eye, the outcome becomes structurally predetermined.

Similarly, the twin conditions of the PMLA, which require a judge to be satisfied that an accused is “not guilty” before granting bail, impose an almost insurmountable burden. Despite being briefly invalidated in Nikesh Tarachand Shah, their subsequent reinstatement in Vijay Madanlal Choudhary has entrenched a regime where pre-trial detention becomes the norm rather than the exception. The structural problem here lies not only in legislative severity but in the judicial internalisation of a prosecutorial-centric conception of justice.

The Great Schism: Watali and Najeeb

Perhaps the most destabilising feature of current bail jurisprudence is the coexistence of two competing doctrinal tracks. On one hand stands the Watali line, which prioritises statutory language and restricts judicial examination of evidentiary sufficiency. On the other hand stands Union of India v. K.A. Najeeb, where a three-judge Bench of the Supreme Court held that prolonged incarceration without a realistic prospect of trial engages Article 21 notwithstanding statutory bars.

At a formal level, the rule of judicial hierarchy would place Najeeb above Watali. Yet, in practice, High Courts continue to invoke Watali to deny bail even in cases of prolonged delay, while treating Najeeb as an exceptional deviation rather than a governing principle.^[iii] The difficulty, therefore, is not one of doctrinal hierarchy but of institutional application. The absence of a clearly articulated methodology for reconciling statutory rigour with constitutional liberty permits unstructured discretion, resulting in an uneven application of Najeeb and leaving many undertrials in a state of legal limbo.

The core constitutional difficulty is not the severity of bail law, but the absence of a principled method by which severity is calibrated against liberty.

BNSS: Decolonization or Missed Opportunity?

With the transition to the Bharatiya Nagarik Suraksha Sanhita, expectations arose that long-standing concerns surrounding undertrial detention and bail adjudication would be addressed through structural reform. A closer examination of the bail-related provisions, however, reveals a limited and uneven intervention. Section 479 of the BNSS introduces temporal thresholds for undertrial detention, such as one-third or one-half of the maximum prescribed sentence. However, it does so without articulating how these limits are to interact with judicial discretion or statutory bail restrictions.

The expansion of police custody powers and the retention of broadly worded restrictive conditions suggest that the State’s power to detain has not been meaningfully curtailed. The BNSS largely codifies existing procedural machinery without resolving the underlying doctrinal conflict between liberty and control. It represents a formal reconfiguration of an unchanged custodial architecture. If the future of criminal justice is to depart from its colonial inheritance, it will require more than renumbered sections. It will require a shift toward a bail-first adjudicatory culture that the BNSS has yet to fully realise.

Constitutional Implications: Uncertainty as Arbitrariness

The central failure of bail law in India lies not merely in its restrictive tendencies, but in its uncertainty. Article 14, as interpreted through the doctrine of arbitrariness, prohibits state action that lacks intelligible standards or permits differential treatment without principled justification. Arbitrariness in this sense is not limited to individual judicial whim but extends to systemic indeterminacy.

When two similarly situated individuals receive divergent bail outcomes solely because they appear before different courts, the law fails in its basic constitutional function. Such structural unpredictability constitutes a constitutional infirmity. Procedure that permits indefinite detention on the basis of indeterminate standards fails the fairness requirement articulated in Maneka Gandhi. When bail becomes a function of judicial subjectivity rather than legal principle, the process itself assumes a punitive character.

Toward Structured Discretion

How does one correct a system in which uncertainty has become routine? The answer lies in structured discretion. Judicial choice must be constrained not by mechanical rigidity, but by legally enforceable standards.

A standalone Bail Act offers one possible institutional response. Such legislation could consolidate principles scattered across the BNSS and special statutes into a coherent framework, mandating a presumption in favour of liberty subject to narrowly defined exceptions.

Courts should be required to record findings on specific, evidence-based risks such as flight risk or witness tampering, rather than relying on abstract formulations like gravity of offence. In parallel, the Supreme Court must provide authoritative clarification on the manner in which statutory bail restrictions are to be reconciled with the constitutional mandate under Article 21, particularly in cases involving prolonged pre-trial incarceration. A definitive articulation of this relationship is essential to ensure that the primacy of constitutional liberty is applied in a consistent and principled manner, rather than through ad hoc judicial invocation.

Conclusion

Bail jurisprudence in India has reached a point where uncertainty is no longer incidental; it is structural. Judicial discretion, once conceived as a means of achieving justice, has become increasingly detached from doctrine.

The remedy does not lie merely in expanding the grant of bail, but in rationalising the adjudicatory process itself. Until bail is re-anchored in consistent legal principles, where outcomes are predictable and the State is held to its constitutional burden, the promise of liberty under Article 21 will remain precariously uneven. For the millions of undertrials in Indian prisons, the difference between justice and injustice often turns not on law, but on which doctrinal path a judge elects to follow.

^[i] Musavir Mir & Dr Bhateri, The Disparity in Bail Matters: A Critical Analysis of Approach Adopted by Courts in Dealing With Bail Matters, Educational Administration: Theory and Practice, Vol. 30, No. 9 (2024), pp. 1286–1287.

^[ii] Sanya Dua & Varsha Devarakonda, Bail Decision-Making in India: Unveiling Judicial Discretion, International Journal of Legal Studies and Social Sciences, Vol. 2, Issue 2 (2024), pp. 108–109.

^[iii] See, for instance, Asif Iqbal Tanha v. State (NCT of Delhi), CRL.A. 39/2021 (Del HC); Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000 (Ker HC); Gautam Navlakha v. NIA, 2021SCC OnLine Bom 4568 (Bom HC).