1. Introduction: The Constitutional Paradox of Preventive Incarceration.

One of the cases involved Rajesh Kumar, who spent 1247 days in Tihar Jail, accused of stealing a mobile phone worth 8,000. The magistrate finally acquitted him at the end of his trial in 2019, but by then, he had lost his job as a daily wage worker, his wife had returned to her parents, who could not support the family, and his children had been out of school. Theft under Section 379 of the Indian Penal Code is punishable by a maximum imprisonment of three years. Rajesh had already served three years and five months awaiting a trial that acquitted him.[i] Rajesh is not an aberration; he is the architecture.

As noted, according to the National Crime Records Bureau’s Prison Statistics India 2022, undertrials make up 76.4 per cent of the overall prison population, totalling more than 4.34 lakh individuals held in prison without charge. This means a constitutional crisis: a prison system based on the presumption of innocence has a criminal justice structure designed to work on the presumption of guilt. The crash between constitutional rhetoric and carceral reality involves the proper introductory provisions: the equality right of Article 14, the right of movement of Article 19, the right of personal liberty guaranteed in Article 21 and the prohibition of arbitrary detention of Article 22. But the introductory proper provisions are shown to be structurally incapable of averting what the Supreme Court in Hussainara Khatoon v Home Secretary, State of Bihar described as the perverse alchemy of criminal procedure: where delay becomes extrajudicial punishment.[ii]

This is not administrative lethargy that needs a change in administration. The bail-to-trial gap has become solidified into a legacy penal system that encourages criminalising poverty, functions outside of sentencing protections, and regularly flouts constitutional protections and evades responsibility under the cover of procedural neutrality.

2. “Bail is the Rule”: The Jurisprudential Fiction vs. Ground Reality

The Supreme Court’s declaration that bail is the rule and jail the exception has become a judicial mantra.[iii] In Arnesh Kumar v State of Bihar, the Court held that arrests should not be made in cases not subject to a sentence of at least seven years, except where indispensable.[iv] Only 17% of applications by district courts for serious offences still receive bail, and police actively arrest for minor crimes even when specific Supreme Court proscriptions apply.[v]

This scholastic-technical gap in jurisprudence betrays a system of operational (and structural) incentives that are essentially at odds with constitutional liberty. The lower court judges engage in perverse risk computations: granting bail to a person who does not commit an offence afterwards will make him the focus of the media and transfers, and will damage his career; not detaining the innocent will result in no consequences at all.

This risk aversion is aggravated by prosecutor pressure. Custody is an investigative crutch of police investigations; lengthy detention coerces admissions, forces witnesses and gives the impression that crime is being prevented effectively. Magistrates who respond to police claims of ongoing investigation or the probability of evidence manipulation do not have independent verification systems to rely on and must trust prosecutors’ assertions. This prosecutor’s informational superiority, the so-called asymmetric knowledge of the law as defined by legal scholars, is a systematic bias that pretrial proceedings are biased in favour of detention.

The freedom-denying system is complete with the economic structure of bail. The release, even when the courts make procedural concessions, such as granting bail with conditions that the persons give 50,000 in the form of personal bonds or guarantee their solvency, reduces the release to a wealth test. To a daily wage worker who earns 300 per day, a 50,000 bond can be translated to half a year of earnings; that is unattainable. Research has shown that 60 per cent of the undertrial prisoners who have been bonded stay in prison due to their inability to pay the financial terms. The system has successfully privatised liberty: constitutional rights have been commoditised and can be purchased only by economically endowed individuals or those with social networks.

3. Temporal Violence of Procedural Delay: More Process than Punishment.

Time itself has become weaponised within the criminal justice system of India, imposing a kind of temporal punishment: serving a more extended term behind bars than the sentence authorised by the court. The injustice in mathematics is savage: an individual who is charged with petty theft (maximising penalty: three years) waits four years in court; another, who is accused of inflicting harm (maximising penalty: one year), is held in pretrial detention for eighteen months.

This temporal violence, with its perverse incentives, reinvigorates the criminal process. Under indefinite detention, undertrials are forced to face a cruel calculus: either take a guilty plea to crimes they did not commit and be released with time served, or uphold their innocence and spend years in prison awaiting a trial that will likely never clear them in the books. Just as plea bargaining is a theoretically efficient mechanism of judicial efficiency, it becomes a coercive process when the other option of indefinite caging is considered. Empirical evidence shows that more than 40% of plea deals involve defendants who are innocent yet unable to afford long-term custody.2 The procedure produces confessions over time.

Outside the courtroom, procedural delay has social-annihilating cascades. Jobs are lost — daily wage workers are replaceable. The breakdown of families is experienced due to poverty; spouses go back to their maternal homes, and children drop out of school to get money. The very occurrence of incarceration permanently damages the identity of social standing in close communities, especially in rural regions, whether it is later overturned by acquittal or conviction. Punitive even to be exonerated by the law, the criminal process is made socially punitive. This temporal violence is in direct contravention of the right to a speedy trial, as expressed in Hussainara Khatoon, where the Court stated that long-term detention without trial diminishes the presumption of innocence to an illusory promise and a vain vow.[vi] But no one has put a stop to systemic non-compliance.

4. Class Stratification of Constitutional Rights: Poverty as Pre-Conviction Sentence.

The population of the undertrial in India treats constitutional rights as class privileges rather than universal rights. Prison statistics indicate that 80 per cent of undertrials are members of the marginalised population, Scheduled Castes, Scheduled Tribes, and Other Backwards Classes and more than 75 per cent are members of households with monthly incomes below 10,000. In contrast, the white-collar suspects in multi-crore financial frauds do get bail within days, and in most cases, not a single night in custody.

This inequality works at the structural level. The financial necessity of having an attorney compels one to resort to overworked legal aid attorneys who have to meet clients minutes before hearings. Bail conditions have solvent sureties, which do not include those who do not own property and have no social networks. Geographic limitations, such as rural accused appearing in urban courts, the cost of travel, and the navigation process, are beyond the reach of those who have been marginalised.

The guarantee of equality provided in Article 14 requires real, rather than formal, access to liberty. However, it practically criminalises poverty as such and forms what theorists call a caste-like hierarchy of constitutional rights where one’s socio-economic status determines the availability of freedom.

5. Further than Reform Rhetoric: Structural Interventions and Accountability Mechanisms.

The traditional reforms are a failure since they do not diagnose the issue as an incentive but its capacity. The rosters of judicial systems are not based on the principle of speedy trial; the informational benefits of prosecutors are not checked; legal assistance is provided only after detention cannot be avoided.

Interventions based on accountability should reform institutional incentives: performance reviews of the judiciary based on the rate of undertrial disposition and the frequency of granting bail; penalties by prosecutors against frivolous demands to detain; recovery of costs by the department through reimbursements in cases of wrongful detention; the automatic review of bail, at designated intervals, without an application.

The constitutional issue is inevitable: is it possible to allow a system that systematically contravenes the foundational rights, even with procedural mechanisms, to have democratic rights? The problem of the undertrial crisis is not a failure of the system- this is the absolute priority of the system. Constitutional liberty has been ousted by administrative convenience and the social control of marginalised populations, which operate as values rather than operational values. Until mechanisms of accountability redress institutional incentives that conflict with constitutional commitments, “rights” will remain mere decorative trappings of an essentially authoritarian structure.

[i] This narrative is constructed from documented patterns in undertrial detention rather than a single identified case, reflecting common trajectories documented in legal aid reports and judicial observations.

[ii] Hussainara Khatoon v Home Secretary, State of Bihar (1980) 1 SCC 81.

[iii] Gudikanti Narasimhulu v Public Prosecutor, High Court of Andhra Pradesh (1978) 1 SCC 240.

[iv] Arnesh Kumar v State of Bihar (2014) 8 SCC 273.

[vi] n (2)