Abstract

This piece is about a feeling most of us recognise but rarely name. The quiet moment when you realise that the liberty you were taught about in school is not in tune with the nerve of the criminal justice system. It is not about dramatic breakdowns or spectacular abuses of power, it is about waiting for justice. It is about undertrials who spend years in prison without being convicted, about bail hearings that feel more like trials, and about how easily delay slips into punishment.

Moving between courtrooms, headlines, and personal observation, the article tries to sit with what prolonged detention does to people, slowly, invisibly, and often without anyone taking responsibility. What remains is an uneasy question: when liberty can be postponed indefinitely, what exactly does innocence still protect?

There is a moment, usually late at night, usually after reading yet another news report or watching another reel, when you realise that the idea of liberty you were taught in school does not quite match the country you wake up to every morning. It does not arrive dramatically. There is no single judgment, no single arrest, no single emergency proclamation that announces it. Instead, it arrives quietly, folded into routine headlines: “Activist denied bail again.” “Undertrial prisoner dies in jail.” “Trial yet to begin after six years.”

The words do not scream. They whisper. And perhaps that is what makes them more dangerous.

Bail, we are told, is the rule. Jail, the exception. It is one of those phrases law students repeat so often that it begins to sound like a fact of nature, like gravity, like sunrise. But over time, repetition has hollowed it out. The phrase remains. The reality does not.

The BBC once described India’s undertrial crisis as a “silent emergency”—a phrase that feels uncomfortably accurate. According to the National Crime Records Bureau, nearly three-fourths of India’s prison population consists of undertrial prisoners. People who are legally innocent. People who have not been convicted. People waiting.

Waiting is not a neutral act. Waiting has weight. Waiting consumes years, families, livelihoods, bodies. And yet, waiting has become normal.

When Liberty Became Conditional

Bail jurisprudence, in theory, is meant to be the safety net of a constitutional democracy. It is where the State’s power to detain is supposed to meet its first serious resistance. It is where liberty is meant to be protected from arbitrariness, where incarceration is justified, not assumed.

But something subtle has shifted. Pre-trial detention is no longer treated as an extraordinary measure. It has become administrative. Routine and almost procedural. Arrest first, incarcerate and argue later.

The Supreme Court has repeatedly warned against this. In judgment after judgment, it has spoken of personal liberty under Article 21, of proportionality, of the need to justify detention. And yet, at the ground level, these principles often feel aspirational rather than operative.

The contradiction is stark: the Constitution speaks the language of rights, but the criminal process speaks the language of suspicion.

In many cases, bail hearings resemble miniature trials, except without the safeguards of a trial. Accusations are read as facts. Allegations acquire the gravity of proof. And the accused is expected to disprove the prosecution’s narrative before the prosecution has proven anything at all.

Exceptional Laws, Everyday Lives

If this were limited to a handful of extraordinary cases, perhaps it would be easier to dismiss. But it is not. Special statutes like Unlawful Activities Prevention Act (UAPA), Prevention of Money Laundering Act (PMLA) and The Narcotic Drugs and Psychotropic Substances Act (NDPS) have redrawn the architecture of bail in India. These laws were designed for exceptional circumstances: terrorism, organised crime, large-scale narcotics operations. But over time, they have seeped into ordinary policing.

Under these statutes, bail is no longer a question of risk or necessity. It becomes a question of prima facie guilt. Courts are asked to assess the strength of the prosecution’s case at the very stage where such assessment should be premature.

A recent Scroll.in report on the acquittal of twelve men in the 2006 Mumbai train blasts case lays bare the human cost of India’s anti-terror framework. After spending nearly seventeen to nineteen years in prison, the accused were ultimately found not guilty by the Bombay High Court. These were not mere procedural delays; they were decades of lost freedom, irretrievable time, and lives suspended in legal limbo. Years that cannot be returned. Years that do not come with compensation. Years that leave behind fractured families and irreversible damage. The law does not call this punishment. But for those who live through it, it feels indistinguishable from one.

The Quiet Cruelty of Delay

Delay is perhaps the most underestimated form of injustice. Unlike violence, it leaves no visible scars. Unlike censorship, it does not announce itself. It simply stretches time until justice becomes abstract. Undertrial prisoners often wait longer than the maximum sentence for the offence they are accused of committing. This is not an exaggeration. It is a documented reality.

In one widely reported case, a man accused of a minor offence spent over ten years awaiting trial. When he was finally acquitted, there was no apology. No acknowledgment. Just a quiet release. And this is not a standalone case, another striking Indian story comes from the case of Ambikesh Mahapatra, a Jadavpur University professor who spent about 10 years in prison after arrest for forwarding (not creating) a political cartoon case before being acquitted in 2023, a case widely discussed as emblematic of prolonged undertrial detention for a minor allegation.

The system does not account for what delay does to the human body, to mental health, to dignity, to memory. It does not measure how incarceration before conviction reshapes a person’s relationship with the world. Delay becomes punishment by default.

Judicial Discretion and the Lottery of Liberty

Ask any criminal lawyer, and they will tell you the same thing: bail in India is often unpredictable. Two identical cases. Two different courts. Two completely different outcomes.

Judicial discretion is essential, no one disputes that. But discretion without consistency becomes uncertainty. And uncertainty, in matters of liberty, becomes fear. There are days when bail is granted on the strength of constitutional principle. And there are days when it is denied with little more than a recital of allegations.

This inconsistency does not just affect accused persons. It erodes faith in the system itself. When liberty depends on which courtroom you walk into, the law begins to resemble chance rather than justice.

The Human Cost We Rarely See

News reports tend to focus on high-profile arrests—activists, journalists, politicians. Those cases draw attention, debate, and, often, swift legal intervention. But the deeper crisis lies elsewhere. It lies in district jails, in overcrowded barracks, in underfunded legal aid offices where files pile up faster than they can be read.

It is visible in the lower courts, away from cameras. During my time as a legal intern, going through the district court, I saw cases that rarely enter public discourse, individuals arrested on allegations of cow slaughter or possession of beef, who consistently maintained their innocence, and in several instances were eventually found to have no material linking them to the offence at all. Yet the cases did not end quickly. Bail was delayed. Trials moved slowly. What should have been a short legal process stretched into years.

The pattern was not confined to any single profile except vulnerability. The accused were Muslim men, often from modest backgrounds, with limited access to effective legal representation. Some spent over five years in custody as undertrials, not because guilt had been established, but because the system moved at a pace they could not survive outside prison walls.

Age offered no insulation. I saw a seventeen-year-old pulled into the criminal process before he fully understood it. I also saw men in their sixties, health already fragile, navigating the same narrow corridors, waiting for the same dates, dependent on the same overburdened legal aid machinery.

These cases did not make headlines. There were no press conferences when bail was denied. In a significant number of instances, denial does not appear to turn on publicly articulated national-security concerns or complex evidentiary assessments, but correlates with factors such as limited access to legal resources and the broader marginalisation of the accused. When release eventually came, it was administrative rather than redemptive: no apology, no acknowledgment, just the quiet closing of a file. Police data shows that, although many people are arrested under the UAPA, and were kept under prolonged custody, very few convictions actually happen. Between 2016 and 2020, more than 24,000 people were arrested under UAPA, only 212 were convicted and 386 acquitted, leaving most still under trial or released without conviction.  

Viewed collectively, these patterns suggest that the systemic strain lies less in a handful of exceptional cases than in the accumulation of ordinary ones that progress quietly through the system over extended periods. Recent reporting shows that about half of the UAPA cases remained pending for more than three years by 2023, and overall conviction rates stayed in the low single digits, even as arrests rose. 

Not a Collapse, But a Drift

It would be easy to frame this as a collapse of the rule of law. But that would be inaccurate, and perhaps unfair. What we are witnessing is not collapse. It is a drift.. A slow movement away from first principles. A gradual normalisation of detention. A quiet acceptance that liberty can wait.

The system still functions. Courts still sit. Judgments are still being written. But somewhere along the way, urgency has been lost and liberty has become negotiable.

Bail jurisprudence is no longer just a procedural concern. It is a moral one. It asks uncomfortable questions about what we are willing to accept in the name of order, security, and efficiency. It asks whether constitutional guarantees are meant to be lived realities or symbolic assurances. Most importantly, it asks whether we are comfortable with a system where innocence must be proven from behind bars.

The answer to that question will define the future of criminal justice in India.

A Whisper, Not an Accusation

This is not an indictment of individual judges, police officers, or lawmakers. Systems are rarely broken by malice. More often, they are worn down by habit.

What is required now is not outrage, but attention.

Attention to the slow erosion of safeguards. Attention to the human beings caught in procedural limbo. Attention to the difference between what the law promises and what it delivers.

Bail was never meant to be a privilege. It was meant to be a reminder—that in a democracy, liberty comes first.

The fact that we need reminding should worry us all.