This article written by Shivangi- Aryans College of Law, Punjabi University This article examines whether the principle of “Bail is the rule, jail is the exception” survives under the new Bharatiya Nagarik Suraksha Sanhita, 2023. By analysing three major changes in custody, handcuffing and arrest, it argues that BNSS has made pre-trial liberty more complicated.
1. Introduction
The right to personal liberty is the cornerstone of criminal jurisprudence. In State of Rajasthan v. Balchand (1977) 4 SCC 308, Justice Krishna Iyer gave bail law its soul by holding “Bail is the rule and jail is the exception.” For 50 years this has been reiterated as a mandate of Article 21. With the enforcement of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), this principle is being tested.
The Supreme Court in Manish Sisodia v. ED, 2024 INSC 595 cautioned that “prolonged incarceration before being pronounced guilty should not become punishment without trial.”
This observation is crucial because, as per NCRB Prison Statistics 2023, 75.8% of prisoners in India are undertrials.This article examines whether BNSS has made bail easier or harder.
2. Meaning and Concept of Bail – The Missing Link
The term “bail” is not defined in CrPC or BNSS as a concept, but Section 2(1)(b) of BNSS defines it as the release of a person accused of an offence from custody upon certain conditions. In simple words, bail is a conditional release, not acquittal. It is a security taken by the court to ensure the presence of the accused during trial.
Jurisprudentially, bail has three forms:
(a) Regular bail under Sections 480 & 483 BNSS,
(b) Anticipatory bail under Section 482 BNSS, and
(c) Default bail under Section 187(2) BNSS when chargesheet is not filed in 60/90 days.
The purpose of bail is twofold: to protect the presumption of innocence and to
ensure that the accused does not flee from justice. The Supreme Court in Satender Kumar Antil v. CBI, (2022) 10 SCC 51 explained that bail is not to be withheld as punishment. Bail is a mechanism to balance the liberty of an individual
under Article 21 and the interest of society in investigation.
3. Three Major Changes under BNSS affecting Bail
A. From 15 Days to 40/60 Days: The Dilution of Personal Liberty under Section 187 BNSS
The most significant shift affecting pre-trial detention is in the provision of police custody. Under Section 167(2) of the CrPC, the police could seek custody only during the first 15 days of arrest. After that period, the accused could only be sent to judicial custody. This 15-day outer limit acted as a safeguard against prolonged police torture and harassment.
Section 187(2) of the BNSS has fundamentally altered this safeguard. It provides that the 15 days of police custody can now be sought in parts
during the initial 40 days, if the offence is punishable with less than 10 years,
and during the initial 60 days, if the offence is punishable with 10 years or more.
The implication for bail is direct. Consider a situation where an accused secures bail on the 20th day. Under the new regime, the investigating agency
can still file an application on the 30th day seeking the remaining balance of police custody. This creates a scenario of “bail and re-custody”, which renders the initial grant of bail illusory. The Supreme Court in CBI v. Anupam J. Kulkarni (1992) 3 SCC 141 had strictly held that police custody beyond 15 days is impermissible. Section 187 BNSS legislatively overrules this protection, thereby strengthening the investigating agency at the cost of personal liberty.
B. Legalising Handcuffs: Presumption of Guilt under Section 43(3) BNSS
Under the CrPC, there was no provision that expressly permitted handcuffing. The Supreme Court in Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526 held that handcuffing is prima facie inhuman and violates Article 21, and should be resorted to only when there is a clear risk of escape.
Section 43(3) of the BNSS now gives statutory recognition to handcuffing. It allows the use of handcuffs for persons who are habitual offenders, have escaped custody, or are accused of offences such as terrorism, murder, rape, and acid attack. While the legislative intent is to prevent escape, the provision is drafted in wide terms. The term “habitual offender” is not defined in the Sanhita, leaving it to the discretion of the arresting officer.
This change affects bail jurisprudence psychologically. When an undertrial is produced before a Magistrate in handcuffs, it creates an immediate perception of dangerousness. This contradicts the very essence of Balchand that an accused is presumed innocent till proven guilty. The use of handcuffs before conviction amounts to a pre-trial punishment in itself.
C. The Paradox of Arrest: Selective Protection under Section 35(7) BNSS vis-a-vis Default Bail
Section 35(7) of the BNSS introduces a limited but significant safeguard against arbitrary arrest. It provides that no arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police, where the offence is punishable with imprisonment for less than three years and the person to be arrested is either infirm or above sixty years of age.
The provision does not create a general bar on arrest for all petty offences, but creates a special protection for vulnerable categories. When read with the guidelines laid down in Arnesh Kumar v. State of Bihar, the intent is to prevent routine arrests of elderly persons in minor cases.
However, the practical utility of this reform is diluted by the extended window for police custody under Section 187(2) BNSS, where the 15-day police custody can be sought in parts during the initial 40 or 60 days. Consequently, while Section 35(7) reduces the initial power to arrest for a limited class, Section 187(2) expands the subsequent power to detain, making pre-trial liberty more precarious than before.
4. Judicial Response: Reaffirming Bail as the Rule
Faced with the stringent provisions of the BNSS, the higher judiciary has consistently tried to reaffirm that personal liberty cannot be compromised by procedural technicalities. The Supreme Court has intervened on two crucial aspects: grounds of arrest and timely disposal of bail pleas.
Firstly, on the illegality of arrest, the Court in Prabir Purkayastha v. State (NCT of Delhi) has given a new weapon to the accused. The Court held that furnishing grounds of arrest in writing to the arrested person is mandatory under Article 22(1) of the Constitution. Failure to do so vitiates the arrest itself and the subsequent custody, entitling the accused to bail. This judgment has become the most cited ground for bail under the new regime, as police often fail to comply with this written notice requirement under Section 47 of the BNSS.
Secondly, on delay in deciding bail, the Court in Javed Gulam Nabi Shaikh v. State of Maharashtra laid down that bail applications must be decided expeditiously, preferably within two weeks by the trial court and within six weeks by the High Court. The Court observed that keeping bail pleas pending for months amounts to denial of the right to speedy justice under Article 21.
Even under special statutes like PMLA and UAPA, where Section 45 imposes twin conditions for bail, the Court in Manish Sisodia (supra) and Arvind Kejriwal v. Directorate of Enforcement has held that if trial is not likely to conclude in a reasonable time, bail cannot be denied merely because the allegation is serious. This shows the judiciary is actively trying to prevent the BNSS from becoming a tool for pre-trial punishment.
5. Conclusion
BNSS has not expressly abrogated “Bail is the rule”, but it has made it procedurally complex. It tries to reduce arrests on one hand through Section 35, but increases police control on the other through Section 187 and 43(3). The true test of BNSS will not be convictions, but how many undertrials it saves.
To restore balance, Section 187 must be read down to bar police custody after bail; handcuffing under Section 43(3) must require a Magistrate’s prior permission with reasons, and written grounds of arrest as mandated in Prabir Purkayastha must be strictly enforced. Till then, bail will remain a rule more in textbooks than in courtrooms.
