Undertrial Detention and the Illusion of Bail in India

Written by Neeve Anand.

1. Bail as a Constitutional Norm

The principal norm of bail, rather than incarceration, pervades pre-trial detention and is firmly embedded within Indian constitutional jurisprudence. Personal liberty under Article 21 of the Indian Constitution has consistently been referred to in upholding the rights of individuals against arbitrary and prolonged deprivations of freedom, especially when guilt has not yet been determined.¹ Undertrial Prisoners—those held in custody during investigation or trial without having yet been convicted—are therefore subject to pre-trial detention only as a constitutional exception, warranted for specific reasons such as the administration of justice and maintenance of public order. This understanding was articulated in Hussainara Khatoon v. Home Secretary, State of Bihar.² The Court highlighted the systemic injustices faced by undertrial prisoners, affirming that the right to a speedy trial is constitutionally mandated under Article 21, which ought not be disrupted by financial constraints or administrative inefficiency.³ The Court thus explicitly recognized that the routine denial of bail undermines the presumption of innocence by imprisoning accused individuals indefinitely before they are proven guilty.

These concerns were echoed in the recent case of Satender Kumar Antil v. CBI, which acknowledged the systematic failings of India’s bail system.⁴ Particularly, the overuse of arrests and the resulting crisis of a growing undertrial prison population show that bail jurisprudence in India has failed to be consistently applied in practice, even with established constitutional norms in place.⁵ Contrary to repeated judicial affirmations that incarceration before conviction must remain reserved for exceptional circumstances, official data indicates that undertrials constituted approximately 75.5% of the total prison population as of October 2025, indicative of the widespread and systemic nature of the issue.⁶ 

2. The Illusion of Bail in Practice

Undertrial detention in India continues to be sustained through routine procedures, such as remand orders issued without adequate consideration, delayed bail hearings, and unaffordable security conditions, rather than genuine judicial assessment on a case-by-case basis.  For example, in Satender Kumar Antil, the Court itself noted that bail applications were being routinely rejected without individual assessment of flight risk or threat to society, representing a significant due process.⁷

Undertrial prisoners frequently remain incarcerated, especially when conditions of poverty prevent them from meeting bail conditions, such as paying financial bonds or local sureties, securing private legal counsel, or even affording transportation to attend hearings. This is exacerbated for migrant undertrials who often lack identity proof, local ties with community and native residents, as well as economic support.⁸ Additionally, legal aid mechanisms function unevenly, with subordinate courts carrying a 21% judicial vacancy rate as of 2025. Each judge handles an average of 2,200 cases a year in district courts, leaving appointed lawyers with little time to meaningfully engage with individual undertrial matters.⁹ This causes many undertrials to remain unaware of their entitled rights throughout the procedure.  

Often, this dynamic unevenly affects social groups. Scheduled Castes (“SCs”), Other Backward Classes (“OBCs”), and religious minorities constitute a disproportionate share of the undertrial population.¹⁰ In a country shaped by the legacy of colonial British law, navigating legal processes remains a formidable challenge for marginalized individuals, particularly amid entrenched caste prejudices, unjustified arrests, and the routine labeling of certain communities as “habitual offenders,” enabling surveillance and repeated detention. For instance, members of the Kuravar community in Tamil Nadu have reportedly faced continual arrests and custodial torture, often due to the convenience of targeting them as suspects under colonial-era policing practices.¹¹ 

The psychological effects of this systemic targeting are also worth noting. In 2022, of all prisoners reported with mental illness in Prison Statistics India, around 63% were undertrials.¹² New undertrial entrants were far more likely to commit suicide than convicted prisoners, possibly due to the uncertainty and immediate stress they face. Moreover, with only one mental health professional per 23,000 inmates, prisons lack basic psychiatric support.¹³ On a broader scale, prisons now operate at 131% national average capacity, with 176 facilities even going beyond 200% occupancy. Law reform efforts are becoming increasingly aware of these concerns. In its 268th Report, the Law Commission of India noted that the existing bail system is inadequate and inefficient, cautioning magistrates against remand orders issued as a matter of routine without individual assessment of necessity and highlighting the heavy financial burdens placed on undertrials.¹⁴ Altogether, these accounts reflect a deeper institutional problem that makes a fair chance at trial and liberty illusory for much of the undertrial prison population.

3. Structural Limits of Bail Jurisprudence

The persistence of undertrial detention reveals the limits of legal protections when institutional capacity and implementation fall short. Multiple intermediaries, including the police, magistrates, various legal-aid mechanisms, and prison authorities, determine whether bail eventually results in release. When these institutions become overburdened or inefficient, judicial norms alone are unable to produce just and tangible outcomes.¹⁵

Section 479 of the Bharatiya Nagarik Suraksha Sanhita (“BNSS”) entitles first-time offenders to bail after serving one-third of their maximum sentence.¹⁶ Together with Phase III of the eCourts Project—a government initiative aimed at digitizing court records and enabling virtual hearings to reduce delays—they represent legislative and administrative steps towards recognizing the rights of undertrials.¹⁷ However, their impact remains constrained due to critical infrastructure deficits, inadequate legal aid outreach, and institutional capacity limitations. In addition, Section 479 (2) of the BNSS allows courts to deny this entitlement of early release if the undertrial faces other pending cases; such a provision may disproportionately affect communities already targeted under the Habitual Offender Acts.¹⁸ Legislative reform, without being paired with institutional reform, is effectively reform in name only.

The consequences of trial delays are profound: investigations and trials extend for years, while individuals secure release only after prolonged incarceration.¹⁹  Machang Lalung, a tribal man from Assam, spent 54 years imprisoned for a minor infraction, despite receiving a sentence lasting only 10 years.²⁰ More recently, Niranaram Chetanram Chaudhary, accused of murder at 12 years of age, was acquitted at 41 after 28 years of detention.²¹ Cases like these have drawn significant public attention and frustration, but reform attempts have continuously proven insufficient at improving legal outcomes or providing relief to undertrials. 

IV)      Conclusion

The ongoing prevalence of undertrial detention in India reveals a disturbing gap between constitutional principles and criminal justice in practice. Although bail is formally enshrined as the protection of individual freedom, its functioning is systematically limited by procedural discretion and institutional inertia. The solution to the problem of undertrial incarceration must thus not only focus on the repetition of doctrines, but also on the structural conditions that mediate the delivery of bail. In the absence of this engagement, the hope of freedom may be a mere ideal for those awaiting trial.

1.  INDIA CONST. art. 21. ↩︎
2.  Hussainara Khatoon v. Home Secy., State of Bihar, (1980) 1 SCC 108. ↩︎
3.  Id. ↩︎
4.  Satender Kumar Antil v. CBI, (2022) 10 SCC 51. ↩︎
5.  Id. ↩︎
6.  NATIONAL LEGAL SERVICES AUTHORITY, Report on Undertrial Prisoners in India, (Jan. 2, 2026), https://cdnbbsr.s3waas.gov.in/s32e45f93088c7db59767efef516b306aa/uploads/2026/02/20260211666479586.pdf. ↩︎
7.  Supra note 4. ↩︎
8. Shreehari Paliath, Why Migrant Undertrials Struggle To Furnish Bail & Access Timely Legal Aid, INDIASPEND (Mar. 30, 2023), https://www.indiaspend.com/police-judicial-reforms/why-migrant-undertrials-struggle-to-furnish-bail-access-timely-legal-aid-857847. ↩︎
9.  Shreehari Paliath, India’s Judiciary Choked by Vacancies, Delays, and Gender Gaps: IJR 2025, THE NEWS MINUTE (Apr. 16, 2025), https://www.thenewsminute.com/news/indias-judiciary-choked-by-vacancies-delays-and-gender-gaps-ijr-2025. ↩︎
10.  Akshi Chawla & CEDA, The Burgeoning Share of Undertrial Prisoners in India’s Jails, THE WIRE (Oct. 5, 2022), https://thewire.in/rights/indian-jails-undertrial-prisoners. ↩︎
11. S. Muralidhar, Appearing in Court in India: Challenges in Representing the Marginalised, 3 CASTE: A Glob. J. on Soc. Exclusion 421, 421–41 (2022). ↩︎
12. Shreehari Paliath, Mental Health Crisis in Indian Prisons Is Worse Than What Official Data Says, THE NEWS MINUTE (Aug. 4, 2025, 11:54 AM), https://www.thenewsminute.com/features/mental-health-crisis-in-indian-prisons-is-worse-than-what-official-data-says. ↩︎
13. NCRB’s Prison Statistics India 2023: Overcrowding, Undertrials, and Mental Health, THE POLICY EDGE (Sept. 30, 2025), https://www.policyedge.in/p/ncrbs-prison-statistics-india-2023. ↩︎
14. Bail or Jail, THE HINDU (Jan. 5, 2026), https://www.thehindu.com/opinion/editorial/bail-or-jail/article18578574.ece.
    ↩︎
15.  Nishi Karol, Access to Justice for Undertrial Prisoners in India, 11 INT’L J.L. 23, 23-24 (2025). ↩︎
16.  Bharatiya Nagarik Suraksha Sanhita, 2023, § 479, No. 46, Acts of Parliament, 2023 (India). ↩︎
17.  E-COMMITTEE, SUPREME COURT OF INDIA, https://ecommitteesci.gov.in/vision-document-for-phase-iii-of-ecourts-project/ (last visited Apr. 15, 2026). ↩︎
18. Tamil Nadu Restriction of Habitual Offenders Act, 1948, No. XIX, Acts of Tamil Nadu State Legislature, 1948 (India). ↩︎
19.  Mukesh Rawat, Undertrial Prisoners in Indian Jails: NCRB Report and Supreme Court Concerns, INDIA TODAY (Jan. 5, 2026, 6:45 PM), https://www.indiatoday.in/india/story/undertrial-prisoners-indian-jails-ncrb-report-prison-statistics-supreme-court-1618588-2019-11-15. ↩︎
20. Parwini Zora, Fifty-Four Years in Jail Without Trial: The Plight of Prison Inmates in India, WORLD SOCIALIST WEB SITE (Aug. 26, 2005), https://www.wsws.org/en/articles/2005/08/india-a26.html. ↩︎
21.   THE TIMES OF INDIA, https://timesofindia.indiatimes.com/india/if-only-theyd-checked-my-age-juvenile-on-death-row-for-28-years-walks-free/articleshow/99445097.cms (last visited Apr. 7, 2026). ↩︎