Abstract

The Indian justice system considers bail to be very important as it aids in the safety of the citizen and ensures that the justice system works properly, under the Article 21 of the Indian Constitution. With the introduction of new provisions for bail in BNSS 2023, the process of how bail works has been changed, showing their belief in "bail; not jail”. This paper studies how the laws about bail have changed from the CrPC to the BNSS and scrutinizes whether the recent changes have really aided in fixing the unfairness in the system for people with financial difficulty who are waiting for their trial. By studying Sections 478 & 496, court decisions and recommendations from the Law Commission, it can be observed that there is a gap between what the law says and what actually happens. Even though there exist rules like making it mandatory for indigent persons to be released on personal bond and setting time limits for release, judicial discretion still results in the perpetuation of socio-economic bias. In India more than 70% of the people in prison are waiting for their trial and the numbers, taken from the NCRB shows that this really affects indigent persons, who cannot pay for bail. The paper also compares the Indian system to countries like the United Kingdom, the United States and the Nelson Mandela Rules while also highlighting the efficacy of the new changes to the bail system in India introduced through BNSS. However, government supervision and judicial discretion is mandatory to ensure that these new laws work properly, particularly with the economic situation of the people requesting bail. Ultimately, India needs to make some changes in the current laws as well. This means that law must make sure that people have efficient legal representation to help them during trial & monitoring courts to ensure that they are not too harsh while granting bail. Without inculcating these changes, pre-trial detention will still continue as an indirect punishment. The Indian bail system needs to be mended so that bail is a right not just in paper, but in reality, as well.

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