Indian Democracy in 100 Notes · ⚖️ Theme 4: Judiciary
Bail, undertrial prisoners, and the right to liberty
A person charged with a crime is presumed innocent until proved guilty, but in India many accused people spend long periods in prison before trial. They are called undertrial prisoners: people in custody during investigation, inquiry, or trial, who have not been convicted. Their situation is a central test of Article 21, which protects life and personal liberty, and of the idea that bail should be the rule and jail the exception — a principle courts have repeated, while also recognising that bail can be refused where there are lawful reasons such as flight risk or interference with evidence.
The scale is large. Analyses of National Crime Records Bureau prison data for 2024, reported in 2026, put undertrials at about 371,440 people, or about 72.6% of all prisoners, even though total prisoner numbers had fallen from their 2022 level. Different reports give slightly different totals because they use different dates and data releases, so readers should check the date behind any figure. What is not disputed in the debate is that delay, inability to furnish bail bonds, lack of legal aid, and slow trials can keep poor accused people in custody longer than others in similar cases.
Law and courts have tried to address this. Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced the earlier Section 436A of the Code of Criminal Procedure, provides that a person detained during investigation, inquiry, or trial for an offence not punishable with death or life imprisonment must be released on bail after serving up to one-half of the maximum sentence for that offence, with earlier release on bond for first-time offenders who have served one-third. In August 2024, the Supreme Court directed that Section 479 be applied to undertrials including those in cases registered before the new code came into force on 1 July 2024. Under Trial Review Committees in districts, legal aid bodies, and a government scheme for support to poor prisoners are also intended to identify eligible people and help with bail.
Critics of the current system argue that the law on paper is not enough without faster trials, simpler bail procedures, and legal aid at the first hearing. Supporters of stricter bail in serious cases argue that liberty must be balanced with public safety and the integrity of trials. Both perspectives matter for reform.
Key takeaways
- Undertrials are accused people in custody before conviction, not convicted prisoners.
- Recent NCRB-based analyses put undertrials at roughly seven in ten prisoners in 2024.
- Section 479 of the BNSS, 2023 sets time-based bail thresholds, with earlier release for first-time offenders.
Why it matters for civil studies: Bail and undertrial detention show whether the right to liberty in Article 21 works in practice, especially for the poor.
Discussion question: Should time already spent in custody automatically entitle an undertrial to bail, or should judges retain discretion in every case?
Fact-checked copy, 1 November 2026. Disputed claims are attributed in the text; moving topics should be re-checked at the time of reading.