Undertrial Detention And The Law Of Bail Under The Nagarik Suraksha Sanhita

Abstract

Three quarters of the persons held in Indian prisons have not been convicted of anything. That proportion has been stable for four decades, across two general recodifications of criminal procedure and a long line of judicial pronouncements holding that liberty is the rule and detention the exception. This article asks why the doctrine and the statistics have failed to converge, and whether the Bharatiya Nagarik Suraksha Sanhita 2023 alters the position. It argues that the persistence of undertrial detention is not primarily a failure of principle but a failure of institutional design at four points: the decision to arrest, the setting of monetary conditions that a poor accused cannot satisfy, the operation of statutory bail restrictions in special legislation, and the absence of any actor with a duty to bring a prolonged detention to the notice of a court. Section 479 of the Sanhita is examined as the most significant textual change, and its exclusion of persons facing multiple cases is identified as the provision most likely to defeat its purpose. The article contends that the constitutional route pioneered in the speedy trial cases has now been developed as far as adjudication alone can take it, and that the remaining work belongs to the design of release conditions, to the surety requirement, and to legal aid at the stage of first production.