Bail as a Human Right: A Critical Examination of Bail Reforms under BNSS

Bail occupies a pivotal position in the criminal justice system, mediating the State’s coercive power to arrest and detain against the constitutional presumption of innocence and the protection of personal liberty. Traditionally perceived as a procedural mechanism to secure the presence of the accused at trial, bail has, through evolving constitutional jurisprudence, acquired the character of a substantive right closely linked to human dignity and liberty under Article 21 of the Constitution of India. The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), replacing the Code of Criminal Procedure, 1973, marks a significant moment in the rearticulation of Indian bail law. This study critically examines bail as a human right in the context of the BNSS, assessing whether the new statutory framework meaningfully advances constitutional promises of liberty or merely reconfigures existing procedural norms without dismantling entrenched structural inequities. Anchored in the lived realities of pre-trial detention, the study recognises that denial or delay of bail often results in punitive incarceration without conviction, disproportionately affecting economically disadvantaged and socially marginalised groups in a system where undertrial prisoners constitute a substantial share of the prison population. Situating bail within comparative constitutional practice and international human rights law, particularly norms under the ICCPR and the UDHR, the paper reinforces the principle that pre-conviction detention must remain exceptional. It traces the historical evolution of bail under the CrPC, highlighting the limitations of discretionary regimes, onerous surety requirements, and systemic delays that undermined equal access to liberty. Against this backdrop, the BNSS is analysed for its reformist potential, including provisions on mandatory bail for indigent accused, continuity of default bail, enhanced recognition of anticipatory bail, and an emphasis on judicial accountability. While acknowledging these as deliberate steps towards a rights-oriented criminal process, the study adopts a cautious stance, noting the persistence of wide judicial discretion, the risk of restrictive conditions justified by public interest or security, and the absence of clear normative standards. It concludes that recognising bail as a human right is a constitutional imperative, and that the transformative promise of the BNSS will ultimately depend on sensitive implementation, judicial training, and sustained institutional reform, reaffirming liberty rather than incarceration as the governing principle of a democratic legal order.