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BAIL JURISPRUDENCE AND SPECIAL STATUTES IN INDIA

How "Bail over Jail" is Being Re-shaped
3 May 2026 by
Rhitoja Bhattacharjee 4th year BALLB, Assam University, Silchar
| 1 Comment

Abstract

The Indian legal framework governing bail derives from the constitutional maxim, "Bail is better than being incarcerated," which is rooted in the protection afforded by Article 21 for the right to liberty and the right to be presumed innocent until proven guilty. This paper will discuss how the commitment to bail has been eroded and fundamentally inverted through the application of special penal statutes such as the UAPA, NDPS, PMLA, etc. This article will consider recent academic literature with an emphasis on practical application, relevant Supreme Court and lower court decisions, and a comparative consideration of bail under the special penal statutes relative to a small number of countries governed by the common law. This article will also compare the evolution of the law regarding bail in India under the framework of the classical Criminal Procedure Code (CrPC) and Chapter 33 of the CrPC (Relating to Bail) and the most recent law passed (the Bharatiya Nagarik Suraksha Sanhita) on the subject.The article concludes that the current regime as established by special statutes represents a fundamental shift from an individualised judicial assessment of the risk of pretrial detention and bail to a categorical assessment of risk by managing offenders collectively, raising serious issues of equality of treatment before the law, constitutionalism and systemic fairness. The article concludes by providing potential directions for reform to restore the constitutional balance between liberty and public safety.

Keywords: Bail jurisprudence; Article 21; presumption of innocence; UAPA; NDPS; PMLA; BNSS 2023; undertrial detention; twin conditions; special statutes; preventive detention.

I. Introduction

The idea that an individual has the right to liberty and that imprisonment is an exception is not just another statement made by courts in India but is also a requirement of the Constitution. The phrase “bail not jail,” used by Justice V.R. Krishna Iyer in the case of State Of Rajasthan vs Balchand[1], expresses the idea that pre-trial detention should only occur when no other alternatives are available and should be based on what is appropriate for each person involved in the case. Article 21 of the Constitution of India [2] requires that any method used to remove a person’s liberty must be done with fairness, justice, and reasonableness; it cannot be done in an arbitrary or excessive manner.[3]

Yet the contemporary landscape of Indian criminal procedure tells a more complicated story. A parallel bail framework has been established by creating and quickly putting into effect special penal legislations like the Unlawful Activities (Prevention) Act (UAPA), the Narcotic Drugs and Psychotropic Substances Act (NDPS), and the Prevention of Money Laundering Act (PMLA). These three laws use various means to displace the liberal presumptions of general criminal law, including but not limited to: reversed burdens of proof; two conditions in which the defendant must demonstrate they are not guilty; and increased standards to determine whether a case established a prima facie case for bail. Together, all of these changes result in a shift from determining guilt at trial to determining whether an individual should be released on bail based on their risk of re-offending. The consequences of this change have significant consequences for undertrials, the presumption of innocence, and the overall integrity of the constitutional framework.This article examines these developments systematically. Part II traces the constitutional foundations of bail law and the classical CrPC framework. Part III analyses the reforms introduced by the BNSS, 2023. Parts IV through VI examine the restrictive bail regimes under UAPA, NDPS, and PMLA respectively, mapping emerging judicial trends. Part VII addresses the systemic undertrial crisis. Part VIII considers comparative perspectives. Part IX sets out principal reform directions, and Part X concludes.

II. Constitutional Foundations and the "Bail, Not Jail" Maxim

The constitutional architecture of bail in India is constructed from at least three interlocking provisions. Under Article 21, an individual is entitled to "not be deprived of his life or personal liberty" unless there is "a procedure established by law." The Supreme Court regularly interprets this provision as requiring that a procedure not only exist;  but also that it be substantively fair, just, and reasonable. Article 19(1)d protects an individual's right to freedom of movement throughout all of India. Pre-Trial incarceration removes from a person this right. Article 22 provides several basic protections for people who are arrested, including the right to be advised of the reason for their arrest and the right to have a lawyer consult with them.
These provisions formed the basis for the Supreme Court's landmark decisions during the late 1970s and 1980s that established a classical orientation regarding bail rather than incarceration (i.e., bail rather than jail). One case that helped to create this conclusion was Hussainara Khatoon v. Home Secretary, State of Bihar.[4] In this case, the Supreme Court acknowledged that the right to a speedy trial is an aspect of Article 21 and that in Bihar, there are thousands of individuals who are being held beyond the maximum time allowed for their alleged offences. In reality, these individuals are being detained in violation of their fundamental rights. The Court's determination regarding unlawful detention initiated a series of systemic changes for pre-trial detention; thus, prolonged pre-trial detention regardless of its legal justification constitutes unconstitutional punishment.

A. Thin Versus Thick Conceptions of the Presumption of Innocence

There has been an academic distinction between the "thin" and "thick" conceptions of the presumption of innocence.[5] The thin view is that the presumption functions mainly as a rule regarding evidence and adjudicating: before someone can be found guilty, the prosecution must prove guilt beyond a reasonable doubt at trial. Different and, therefore, more flexible standards govern pre-trial decisions, such as pre-trial bail. The thick view is that the presumption is a constitutional principle that extends throughout the totality of the criminal process, e.g. arrest, detention, and bail. As to the thick conception, any pre-trial deprivation of liberty must be both strictly necessary and proportionate and the state has the burden of justifying the continued detention of an accused (i.e., the accused does not have to earn their release).
The Indian Supreme Court has, at various points, endorsed elements of both conceptions. The classical "bail, not jail" jurisprudence reflects thick presumptive thinking: liberty is the constitutional baseline, detention the constitutionally-justified exception. However, as Chitkara and Bansal & Plaha have demonstrated, the special statutes effectively impose a thin or, more accurately, an inverted conception at the bail stage.[6]   Under UAPA, NDPS, and PMLA, the accused must satisfy the court of non-guilt to obtain bail a structural reversal of the constitutional default that has yet to receive sustained critical scrutiny from the Supreme Court.

B. Factors Influencing a Court’s Decision Regarding Bail

Courts have developed certain factors used in deciding whether to grant bail that will apply in a large number of situations and cover the vast majority of circumstances where the discretion of a judicial officer is being considered, such as: "what is the nature and seriousness of the charge" & "what is the person's past record" (eg. what is their prior record, are they a flight risk); what are the characteristics of the person(s) who are charged or have been accused, including (but not limited to) their age, health, sex; does the person pose a danger to the community or have a high likelihood they will commit another crime while on bail; and whether the person is a member of the criminal justice system will influence the amount of weight to be placed upon the above mentioned factors before making a determination on bail.[7] The law is not a science, thus no one factor is determinative and a judge must use a holistic approach to evaluate the unique facts and circumstances surrounding the particular person and determine if the individual is entitled to bail. In Ankush Maruti Shinde v. State of Maharashtra, the court stated that the failure to consider all factors and arrive at a legal conclusion only based on the seriousness of the charge is, at a minimum, an error of law.

III. The Classical Framework: From CrPC to BNSS, 2023

A. The CrPC Architecture

The Code of Criminal Procedure, 1973 classified offences into bailable and non-bailable categories. In bailable offences, bail was a right: the accused upon furnishing the prescribed surety was entitled to release. In non-bailable offences, bail was a matter of judicial discretion, with the High Court and Sessions Court possessing concurrent powers, and the Supreme Court retaining exceptional power under Article 136. Anticipatory bail under Section 438 CrPC provided pre-arrest protection in cases of anticipated wrongful arrest.
The evolution of anticipatory bail jurisprudence is particularly instructive. The Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab held that the power under Section 438 must be exercised without importing extra-statutory limitation. In rejecting the argument that anticipatory bail is limited to exceptional cases, the Court reaffirmed that anticipatory bail is a safeguard for one's fundamental right to personal liberty. Over the years, many different benches of the Supreme Court have restricted the scope of anticipatory bail by imposing time limits on it, limiting it to serious offences, and placing conditions that often prevent the anticipated bail from being granted. However, in its recent case of Sushila Aggarwal v. State (NCT of Delhi), the Court has returned to the more generous interpretation of anticipatory bail which was first established in Sibbia by stating that anticipatory bail applies until the conclusion of the trial unless the court has issued an order to the contrary.

B. Reforms Under the BNSS, 2023

The Bharatiya Nagarik Suraksha Sanhita, 2023,[8]  which replaced the CrPC with effect from 1 July 2024, represents the most comprehensive legislative overhaul of Indian criminal procedure in half a century. On bail, the BNSS introduces several notable reforms aimed at addressing the systemic undertrial crisis and codifying existing Supreme Court jurisprudence.
First, the BNSS provides, for the first time in codified form, a definition of "bail" as conditional release upon execution of a bail bond, thereby removing definitional ambiguity that had generated inconsistent judicial practice. [9] The BNSS also introduces a provision for first-time offenders facing non-serious charges who have already served 1/3rd of their maximum sentence. They can now qualify for release in less than the maximum time allowed under bail. This recognizes that pre-trial detention is itself a punishment that is prohibited by the Constitution, as there has not yet been any determination of guilt; and that imposing a lengthy stay on an accused person creates an unfairly punitive and unconstitutional burden on him or her. The BNSS attempts to ensure that police practices are compliant with Satender Kumar Antil v. CBI [10] and Arnesh Kumar v. State of Bihar[11] by requiring judges to articulate their reasons for granting or denying bail, ensuring the court revisits the bail conditions of an undertrial who cannot reasonably meet them and that arrest should be used as the last resort. However, whether those legislative goals are realized in trial courts will depend, as Bhutia observes, on the cultural characteristics of judicial officers and the judicial system, neither of which can be sufficiently guaranteed by any legislative action. 

Despite these reforms, the BNSS conspicuously leaves intact the restrictive bail regimes under special statutes. Several commentators, including Sarraf and Mishra, have made an in-depth section by section comparison of the CrPC and BNSS provisions for bail. While the BNSS makes substantive improvements in multiple areas, it does not provide any changes to the intersection of general criminal procedure and the special statute bail bars. Thus, the constitutional tensions that arise as a result of the UAPA, NDPS and PMLA continue under the new procedural system just as strongly as they did prior to introducing the BNSS.

IV. UAPA: Constructing a Permanent State of Exception

Since its original passage in 1967, the Unlawful Activities (Prevention) Act has been amended several times, last in 2019. The overall intent was to strengthen enforcement against terrorism and related activities. Section 43D(5) of the Act states that if a Court finds sufficient evidence to determine that there are "reasonable grounds" to believe that an accused is guilty, then the Court shall not grant the accused bail. [12]

A. The Prima Facie Standard and Its Constitutional Tensions

The prima facie standard under Section 43D(5) is structurally different from the assessment conducted at the bail stage under the CrPC. In a standard criminal law case, a court will evaluate if continued detention is necessary, which is a forward-looking inquiry and does not require an assessment of whether someone is guilty of a crime. In UAPA cases, a court must make an independent determination regarding whether the prosecution's prima facie case has been established before proceeding with trial. In the case of NIA v. Zahoor Ahmad Shah Watali,[13] the Supreme Court determined that in order to determine whether there is sufficient basis for finding that defendant should not be released on bail under UAPA, evidence does not have to be specifically reviewed and that a broad probabilistic view of the prosecution case will support the refusal of bail. Critics argue that this makes bail denial self-fulfilling: whenever charges are framed, the prima facie standard is almost inevitably met by the prosecution version alone.

Deswal identifies this as the juridical mechanism by which the UAPA constructs what may be termed a "permanent state of exception" a condition in which the emergency logic of anti-terror legislation becomes the permanent operative baseline for accused persons, with constitutional rights suspended rather than carefully balanced.[14] Chitkara demonstrates, through a close reading of High Court decisions, that accused persons in UAPA cases regularly spend five to ten years in pre-trial custody periods that frequently exceed the maximum sentence they would receive even upon conviction for the alleged offence.  High-profile prosecutions such as the Bhima Koregaon cases have brought this structural pattern into sharp public relief. 

B. The Constitutional Court's Corrective: Article 21 as Residual Safeguard

A significant jurisprudential development in this area came with the Constitution Bench decision in Union of India v. K.A. Najeeb, [15] where the Supreme Court unanimously held that constitutional courts retain the power to grant bail in UAPA cases notwithstanding the Section 43D(5) threshold where inordinate delay in trial itself results in a violation of Article 21. This represents an important doctrinal corrective: the Constitution is not suspended by a special statute, and prolonged incarceration without trial conviction cannot be the practical consequence of legislative stringency.
However, as Bansal and Plaha observe, the Najeeb formula is narrow and residual: it operates only where delay reaches the threshold of constitutional violation, leaving intact the structural asymmetry between prosecution and accused at every earlier stage of proceedings.  The remedy is available when the harm has already been done.

V. NDPS Act: Systematic Denial of Judicial Discretion and its Limitations On Bail:

The NDPS Act of 1985 defines a "reverse burden" bail standard, which means that in order to grant a bail application under section 37, the court must satisfy itself that there are reasonable grounds for believing that (i) the accused person is not guilty of the crime they are charged with; and (ii) the accused will not commit any further crime while on bail. [16] The court must therefore make a finding of non-guilt by giving its opinion on the prosecution's evidence before a trial has taken place and there has been full disclosure of the evidence. As such, in practical terms, this creates an extremely high threshold to meet in order to grant bail which will, therefore, systematically result in bail being denied.

A. Empirical Patterns of Bail Denial

The comparative study conducted by Sudan and Dhabhai across Delhi courts documents a statistically significant disparity in bail outcomes between IPC offences on the one hand and NDPS/UAPA offences on the other. [17] Accused persons in NDPS cases including those charged with possession of relatively minor quantities are held in pre-trial custody for substantially longer periods than accused persons in comparably serious IPC cases. The severity of the behavior involved cannot be the only reason for the disparity; there is also a systematic disadvantage to the accused based on the definition of a reverse burden of proof under Section 37.
​
Charak also points out that there is now another level of complexity beyond the trial.  This comes from the Tofan Singh v. State of Tamil Nadu [18] case, which limited whether a confession made to an officer of the NCB under Section 67 NDPS would be admissible as evidence in a court of law.  Although the Tofan Singh case applies to trial evidence, its impact will extend to bail proceedings because a prosecution that relies on using a Section 67 statement as a basis for establishing a prima facie case at the bail hearing will be prevented from doing so by jurisprudential precedent.  This situation leads to unlawful denials of bail that can only be corrected by appeal.

B. Article 14 and the Equality Dimension

A separate constitutional question relating to Article 14 arises from the difference between the standards of bail set by special statutes and those set by general criminal law. The Courts treat NDPS cases in which bail is typically denied almost automatically, while other offences of similar seriousness (or higher) under the IPC are assessed for bail under a more individualised and discretionary basis. The difference in treatment between those groups of offenders must be justified by an intelligible relation to the legitimate aims of legislation (i.e., prohibiting certain drugs) evidenced by a rational connection between the classification and the aims of the legislation. In this regard, while the Supreme Court has upheld the classification of offenders arising out of NDPS legislation, the increase in empirical studies showing the disproportionate and discriminatory effect of such legislation on economically disadvantaged/ marginalised accused has added importance to determining whether renewed scrutiny under Article 14 of those legislative classifications is warranted given the current level of empirical data published on this subject.

VI. PMLA and the Twin Conditions: Constitutional Constitutionalism Under Strain

The PMLA was enacted by means of the Prevention of Money Laundering Act, 2002, as amended by The Finance Act, 2018. The bail processes set forth in the PMLA are the most complicated in all of India. The provisions of Section 45 of the PMLA require that, before the Court grants any person bail, it may only do so if it has given the Public Prosecutor an opportunity to object, and if it is satisfied beyond all reasonable doubt that the Accused person is innocent and will not commit further offences while on bail.[19]

A. Vijay Madanlal Choudhary and the Judicial Endorsement of Restriction

The Supreme Court of India ruling in Vijay Madanlal Choudhary v. Union of India [20] deemed the twin conditions and several other provisions regarding the Prevention of Money Laundering Act’s (PMLA) power to arrest, reverse burden of proof under Section 24 and restrictions on bail pending appeal, to be constitutionally compliant. The opinion has been reviewed as a strong endorsement for a criminal procedure that will disadvantage those who are accusers.
Dubey argues that the Court's reasoning in Vijay Madanlal is premised on an instrumental economic rationale that money laundering poses a macroeconomic threat requiring exceptional tools without adequately interrogating whether the proportionality of each individual measure satisfies the constitutional standard of fairness and non-arbitrariness. [21] Rana, writing in the NUJS Journal of Regulatory Studies, argues more sharply that the decision represents a departure from the court's own constitutional framework and effectively sanctions a regime of preventive detention for economic offences dressed in the language of criminal procedure. 

B. The Enforcement Directorate's Power to Arrest and the Due Process Deficit

Scholarship has raised a number of significant concerns regarding the scope of the Enforcement Directorate's power to arrest under PMLA. In contrast to the CrPC's requirement for arrests to be generally compliant with the procedural safeguards provided in Section 41 and Section 41A (as interpreted by the Supreme Court in Arnesh Kumar), arrests that take place under Section 19 of PMLA have historically occurred with very little, if any, judicial oversight at the pre-arrest stage and there are simply no limits on the manner in which an officer is permitted to record their reasons for making an arrest, which provides only minimal constraints on the detention framework established in general criminal law.  The result The result is that the bail hearing itself becomes the first meaningful judicial intervention in the deprivation of liberty by which point the accused is already in custody and bears the twin conditions burden to secure release. This procedural sequencing generates a structural due process deficit that no amount of bail jurisprudence can fully repair after the fact.

VII. The Systemic Undertrial Crisis: A Structural Rights Problem

The cumulative effect of restrictive bail practices across general and special law is a prison population dominated by undertrial prisoners. According to Pawan et al., undertrials comprise at least three-quarters of the prisoner population in India, and this statistic has remained relatively unchanged through years of judicial action and legislative reform.[22] According to data collected by the National Crime Records Bureau, as of December 31, 2022, they made up 75.8% of the total prison population in India. A substantial portion of these prisoners are awaiting trial for more than one year. The Supreme Court has also described the crisis of undertrials as a systemic problem with respect to the Indian Constitution in cases such as Common Cause v. Union of India and ongoing litigation related to the inhuman conditions of approximately 1382 industrial prisons ("inmates" may not be the correct term here), but instead would be referred to as either detainees or undertrials, as these people have yet to be found guilty of a crime by a judge.[23]
The crisis has two analytically distinct dimensions. The first is legal: the structural barriers to bail created by special statutes and by the practical unavailability of sureties, documents, and legal representation for economically marginalised accused. The second is sociological: prolonged pre-trial detention erodes livelihoods, destroys family structures, and creates the very social conditions poverty, stigma, loss of employment that are empirically associated with reoffending. In this respect, the risk management logic embedded in special statutes is self-defeating: by increasing the duration of pre-trial incarceration, the law produces the very risks it claims to manage.

Through jurisprudence, Mishra concluded that our current bail system primarily serves as a way to sort society into two groups: those possessing financial means (including family), legal representation and bail will be able to get out of jail before trial; while many people lacking those type of resource (in particular Dalits, Muslims, and Tribal) are disproportionately still incarcerated. Such demographic trends raise important issues within Art. 14, 15 and 21, yet higher level courts have been very limited in their doctrinal treatment of how bail law and group discrimination intersect. However, Supreme Court has created jurisprudence where if the length of undertrial's confinement has exceeded half his maximum lock-up term for alleged crime, he is generally entitled to be released on bail.

VIII. Lessons from the UK and the USA: A Comparative Perspective

Another point raised in the comparative analysis is to highlight the fact that other mature common law democracies, who are facing similar challenges with respect to national security or organised crime, have developed their own bail systems with stronger protections of procedural safeguards and better defined time limits. The ICCPR which India is bound by (since ratification in 1979) also provides a clear message that pre-trial detention shall be the exception, as stated in the United Nations Nelson Mandela Rules which require that untried persons be treated as if they were innocent.[24]

In the United Kingdom, the Terrorism Act 2000 provides for pre-charge detention in terrorism cases, but caps such detention at a maximum of fourteen days subject to judicial authorisation at every stage. [25] Post-charge, bail conditions in terrorism proceedings are subject to a structured proportionality review. The UK regime, while itself subject to ongoing human rights critique, nevertheless embeds explicit time ceilings that operate as absolute limits on pre-trial incarceration constraints absent from the Indian UAPA framework, where undertrial periods measured in years are not uncommon.

The United States constitutional framework, while structurally different from the Indian model, provides instructive analogies under the Bail Reform Act of 1984 and Salerno jurisprudence. The US Supreme Court upheld preventive detention in United States v. Salerno,  subject to procedural requirements including adversarial hearings, burden standards, and explicit findings of necessity.While the preventive detention framework has a place within US law, the US still has procedural safeguards, (e.g. confrontation hearings, rationale and/or reasons established by a hearing officer, a right to appeal the decision of a hearing officer) that are much better than those afforded under the Indian special statute system. Although Sachdeva & Ahmad provide a comparative analysis, showing that there is no strict tradeoff between security and liberty, it would be useful for the Indian legislature to evaluate how stronger procedural safeguards can go hand-in-hand with crime control in future reform efforts.

IX. Reform Directions

The doctrinal and empirical analysis presented in this article points to five principal reform directions:
1. Re-centring Article 21 in Special Statute Interpretation. Courts and the legislature must treat the restrictive bail provisions of UAPA, NDPS, and PMLA as exceptions to the constitutional rule of liberty, to be strictly construed and applied only upon rigorous satisfaction of their precise conditions. The endorsement of expansive prosecutorial authority in Vijay Madanlal Choudhary requires revisitation either through a larger bench reference or through legislative amendment in light of the proportionality standard now recognised as integral to Article 21.

2. Statutory Time Ceilings on Pre-Trial Detention. Parliament should enact absolute maximum periods of pre-trial detention applicable across all statutes, including special laws. Where the state cannot complete trial within those periods, bail should follow as a matter of right subject only to the most compelling individual circumstances. This would operationalise the constitutional guarantee of speedy trial from Hussainara Khatoon and bring Indian law into alignment with UK and US practice.

3. Rationalising Arrest Powers Under PMLA and UAPA. The arrest powers of the Enforcement Directorate and the NIA should be brought within the procedural framework of the BNSS, including compliance with judicial oversight requirements before or immediately after arrest. The procedural due process deficit created by the present sequencing where the bail hearing is the first judicial intervention is structurally irreconcilable with Article 21.

4. Addressing Non-Monetary Barriers to Bail. The BNSS's direction to courts to revisit unmet bail conditions is a step in the right direction, but requires institutional infrastructure in the form of trained bail assessment officers, legal aid at the bail stage, and electronic monitoring alternatives to be operationally meaningful. Parliament and state governments must invest in these infrastructure elements.

5. Structured Judicial Discretion and Reasoned Orders. Courts at all levels should be required to issue substantive reasoned orders in bail applications specifying findings on flight risk, evidence integrity, and public safety as recommended by the Law Commission of India in its Report No. 268 on bail reform before denying bail. The practice of one-line bail refusals is constitutionally inadequate and generates the inconsistency documented by empirical scholarship. Structured discretion guided by a legislative checklist offers a middle path between unguided arbitrariness and rigid statutory formulas.

X. Conclusion

The evolution of Indian bail law shows an enduring, unresolved conflict over the past 50 years that is becoming more extreme. The Constitution's comprehensive pledge of "bail, not jail" in Article 21's right to freedom and principle of presumption of innocence has become only a nominal standard from which courts begin their decision making. However, special laws UAPP, NDPS, and PMLA have been enacted which have created a parallel operational structure for bail whereby the burden of proof for innocence falls on the accused, there are precluded exercises of discretion by judges, and pre-trial imprisonment for several years is the expectation rather than an aberration.
The BNSS, 2023 represents a partial corrective: it codifies liberal bail concepts, rationalises conditions for first-time offenders, and aligns arrest practice with Supreme Court guidelines. But it leaves special statute regimes untouched, and the structural undertrial crisis in which over three-quarters of India's prison population consists of persons not yet convicted of any offence persists as a systemic indictment of the criminal justice system's alignment with constitutional values.

The fundamental question confronting Indian constitutionalism is whether the accommodation of special statutes within the constitutional order represents a principled exception or a creeping normalisation of the "permanent state of exception". The answer depends, ultimately, on the willingness of the Supreme Court to read the Constitution's guarantees of liberty and equality with consistent rigour regardless of the statutory label attached to the offence alleged. Until that jurisprudential commitment is renewed and sustained, the gap between the maxim "bail, not jail" and the lived reality of India's undertrial prisoners will remain a measure of the constitutional work still to be done.

Reference

[1]State of Rajasthan v. Balchand, AIR 1977 SC 2447. The maxim "bail, not jail" articulated by Justice V.R. Krishna Iyer remains the foundational constitutional orientation of Indian bail jurisprudence.

[2]Constitution of India, Art. 21: "No person shall be deprived of his life or personal liberty except according to procedure established by law." Read with Art. 19(1)(d) and Art. 22, these provisions constitute the constitutional architecture of liberty in pre-trial proceedings.

[3]Maneka Gandhi v. Union of India, AIR 1978 SC 597; Francis Coralie Mullin v. Union Territory of Delhi, AIR 1981 SC 746. The Supreme Court has held that procedure established by law must be fair, just, and reasonable, not arbitrary, fanciful or oppressive. 

[4]Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360. The Court recognised the right to speedy trial as an integral and essential part of the fundamental right to life and liberty under Art. 21.

[5]Bansal, A. & Plaha, D. (2024), "Presumption of Innocence in Bail Jurisprudence: Erosion or Evolution?", International Journal of Judicial Law, Vol. 3(4), pp. 38-41. The authors trace the genealogy of the presumption of innocence from its common law roots through Indian constitutional adaptation and examine its contemporary vitality under special statutes.

[6]Chitkara, R. (2024), "The Trials of Bail: Pre-Trial Presumption of Innocence Under the Unlawful Activities (Prevention) Act, 1967 and General Criminal Laws", National Law School of India Review.

[7]Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632. The Constitution Bench held that the power to grant anticipatory bail must be exercised with due care and circumspection, but cannot be whittled down by judicially-created limitations not found in the statute.

[8]Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023). The BNSS replaces the Code of Criminal Procedure, 1973, and came into force on 1 July 2024.

[9]Bhutia, S. (2025), "An Overview on the Paradigm Shift in Bail Proceedings under BNSS, 2023 for Time Bound Delivery of Criminal Justice", International Journal for Multidisciplinary Research, Vol. 7(3).

[10]Satender Kumar Antil v. CBI, (2022) 10 SCC 51. The Supreme Court issued comprehensive directions for rationalising arrests and bail conditions, directing courts to give reasons for denying bail and urging prosecutors to avoid unnecessary arrests in compoundable offences.

[11]Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. The Supreme Court issued detailed guidelines cautioning against mechanical arrests under Sections 41 and 41A CrPC and directing magistrates to apply their mind before authorising detention.

[12]Section 43D(5), Unlawful Activities (Prevention) Act, 1967 (as amended in 2008). The provision states that the court shall not release the accused on bail if it is of the opinion that there are reasonable grounds for believing that the accusations against such person are prima facie true.

[13]National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1. The Supreme Court held that at the bail stage under UAPA, the court is not required to undertake an elaborate examination of evidence; even a prima facie view of the prosecution version suffices to deny bail.

[14]Deswal, S. (2025), "Bail Under the UAPA and Preventive Detention Laws: A Legal and Jurisprudential Analysis", Research Review Journal of Social Science, Vol. 5(1). The author draws on Agamben's theory of the "state of exception" to argue that anti-terror legislation structurally suspends the normal operation of constitutional rights. 

[15]Union of India v. K.A. Najeeb, (2021) 3 SCC 713. A Constitution Bench held that constitutional courts retain the power to grant bail under Art. 32/226 even in UAPA cases where the statutory threshold is not met, if inordinate delay in trial infringes Art. 21.

[16]Section 37, Narcotic Drugs and Psychotropic Substances Act, 1985. Bail may be granted only if the court is satisfied that there are reasonable grounds for believing the accused is not guilty of the offence and that he is not likely to commit any offence while on bail.

[17]Sudan, N. & Dhabhai, V. (2025), "Bail Jurisprudence Under Special Laws: A Comparative Study of NDPS, UAPA, and IPC Offences in Delhi Courts", International Journal of Leading Research Publication, Vol. 6(10).

[18]Union of India v. Ram Samujh, (1999) 9 SCC 429; Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1 (on the admissibility of confessions before NCB officers, which bears directly on the evidentiary foundation for bail denials under NDPS).

[19]Section 45, Prevention of Money Laundering Act, 2002 (as amended by the Finance Act, 2018). The twin conditions require the court to be satisfied, after giving the public prosecutor an opportunity to oppose the application, that there are reasonable grounds to believe the accused is not guilty and will not commit any offence while on bail.

[20]Vijay Madanlal Choudhary v. Union of India, (2022) 10 SCC 1. The Supreme Court upheld the constitutional validity of the PMLA bail provisions including the twin conditions, reverse burden of proof, and the power of the Enforcement Directorate to arrest.

[21]Rana, S. (2026), "Revisiting Personal Liberty under PMLA, 2002 on Constitutional Premises", NUJS Journal of Regulatory Studies, Vol. 10(4). The author argues that the Vijay Madanlal judgment represents a regressive step in the constitutional protection of personal liberty.

[22]Pawan et al. (2025), "The Study of Laws Relating to Bail in Light of the Constitution and New Criminal Laws in India", International Journal of Environmental Sciences. The authors document that undertrials constitute over 75% of India's prison population, raising systemic constitutional concerns.

[23]Common Cause v. Union of India, (2017) 7 SCC 547; Re: Inhuman Conditions in 1382 Prisons, (2016) 3 SCC 700. The Supreme Court has repeatedly flagged the undertrial crisis and prison overcrowding as a structural constitutional problem demanding systemic remediation.

[24]Sachdeva, N. & Ahmad, P. (2022), "Bail Jurisprudence in India and a Comparative Analysis with UK and USA — Preserving the Balance of Justice", Journal for ReAttach Therapy and Developmental Diversities, Vol. 5(2).

[25]Terrorism Act 2000 (UK), Schedule 8; CONTEST: The United Kingdom's Strategy for Countering Terrorism (2023). The UK regime includes judicially authorised maximum pre-charge detention of 14 days for terrorism suspects, with periodic review, representing a sharper time-bound framework than Indian UAPA practice.

Rhitoja Bhattacharjee 4th year BALLB, Assam University, Silchar 3 May 2026
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