Bail As Punishment: Examining India's Undertrial Crisis Through A Socio-Legal Lens
- IJLLR Journal
- 11 minutes ago
- 1 min read
D. Sriya Renuka, BBA LLB, Woxsen University
ABSTRACT
In India, there is currently a crisis happening within the country's Criminal Justice System that has remained unobserved by many people; a high number of the country's inmates are held in pretrial detention (also known as undertrials) without receiving a conviction for an offense. According to the report from Prison Statistics of India 2024, 72.61% of inmates are undertrial inmates; 9,028 inmates have been in preconviction detention for more than five years. This paper will argue that under India's current bail system, which is based on monetary sureties, preconviction detention is de facto a form of punishment and disproportionately impacts the poor and marginalized people in India, which violates Articles 14, 21, and 22 of the Constitution of Indian. The paper will use a socio-legal methodology by examining constitutional protections, the evolution of bail law from the Code of Criminal Procedure 1973 to Bharatiya Nagarik Suraksha Sanhita 2023 as well as important Supreme Court judgments from Hussainara Khatoon to Satender Kumar Antil. Although legislative and judicial reforms have been made, there continues to be a barrier to access of bail through usage of a financial surety as a result of the structure; for those who are unable to pay, there are little differences between the outcomes of preconviction detention and punishment. Finally, the paper will conclude with four structural reform proposals to address the underlying causes of the undertrial crisis instead of solely addressing the symptoms of an undertrial crisis.
Keywords: Bail, Undertrial Prisoners, Article 21, Pre-Trial Detention, Criminal Justice, Socio-Legal Analysis, India.
