A concept we commonly recapitulate is “Innocent until proven guilty”. But what happens when your freedom is determined by your wallet instead of your innocence?
Introduction
Imagine being arrested for a minor crime — that is, a petty theft charge, or an altercation with someone on the street. You’re informed that you qualify for bail. A relief? Not really. You can’t afford ₹10,000 for the surety. You don’t have anybody to stand surety. And that’s it, you’re jailed. Not because you’re guilty, but because you’re poor.
This is the situation for thousands of Indian undertrial prisoners, who are in jail for months — in some cases, years — not for the gravity of their offense, but simply because they don’t have enough money for bail.
India’s criminal justice system, in spite of its constitutional promise of equity, remains in practice as discriminatory towards the marginalized as ever before. The economic conditions placed on bail as a condition serve as an invisible wall, which ensnares the poor and leaves “innocent until proven guilty” a slogan rather than a reality.
The Constitutional Promise vs. The Ground Reality
The right to life and liberty is guaranteed by Article 21 of the Indian Constitution. This includes protection from arbitrary detention and a fair trial. The Code of Criminal Procedure (CrPC), particularly Sections 436–439, permits the courts great latitude in awarding bail, mostly for bailable offences.
However, in reality, bail is not always liberation—for the poor, it is just another word for extended imprisonment.
A 2022 report by the (NCRB) reveals that more than 75% of Indian inmates are undertrials. Several of them are in jail for minor, non-violent offences. And a good majority of these individuals are in jail not because bail was refused, but because they were unable to fulfil the financial or procedural requirements laid down by the courts.
Why Is Bail So Expensive for the Poor?
The law provides for both cash bonds and personal sureties. Theoretically, courts are able to release on a “personal bond” — a promise to show up — particularly when the offense is a minor one and the individual has community ties. But in practice:
- Courts routinely demand money bail even for petty offenses.
- The amount specified is arbitrary, with minimal regard to the financial condition of the accused.
- Requirements for sureties (e.g., a landowner or one with fixed income) are not easy to meet for daily-wage workers, migrants, or the homeless.
- Counsel at bail hearings is frequently lacking, particularly for those who are dependent on overworked legal aid lawyers.
The outcome? Liberty becomes a privilege, not a principle.
Human Stories: A System Failing the Powerless
Take the example of Salma, a 19-year-old domestic worker in Delhi, accused by her employer of theft. Bail was forthcoming the following day, but on condition: ₹15,000 and a local surety with proof of identity and property. No relatives in the city, no proof of income, no knowledge of how to negotiate the system. She remained in jail for two months, before legal aid NGO stepped in.
Or Ramesh, a labourer detained for joining a protest. discharged on bail of ₹10,000, he spent three weeks in jail because his family in a rural village couldn’t arrange for the money in time. In the interim, his suffering mother didn’t receive her medication, and his job was lost.
These are not random examples — they are the lived realities of countless Indians who are illegalized for poverty.
Judicial Awareness, but Limited Reform
Indian courts have not stayed clueless to the issue, though. There have been landmark judgments which have acknowledged the injustice executed by strict bail procedures:
•Hussainara Khatoon V. State of Bihar, 1979: The Supreme Court first raised the issue of undertrial prisoners, terming extended pre-trial detention as a violation of Article 21.
•Moti Ram Case ,1978: Justice Krishna Iyer used to say, “Bail is the command, jail is the deviation.” He alerted courts not to fix bail amounts so high that they become overpriced for the accused.
•Satender Kumar Antil Case, 2022: The SC again emphasized the importance of bail in petty offences and discouraged prolonged pre-trial detention.
In spite of such rulings, enforcement remains incompatible across lower courts, especially in rural and semi-urban areas. Bail resolutions often depend on the judge’s discernment, the lawyer’s efficiency, and the accused’s socioeconomic status.
Bail Reform in India: Recent Steps
The Criminal Procedure (Identification) Act, 2022, and the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) — the upcoming procedural code replacing CrPC — seek to streamline arrest and bail procedures. Notably:
- The BNSS proposes mandatory time limits for investigating officers to submit bail applications.
- It also proposes provisions for community service or electronic monitoring in place of confinement for minor offences.
However, these reforms still leave financial bail conditions largely untouched. There is no systemic mechanism for courts to assess the economic capacity of the accused before deciding bail terms — a serious gap.
The Way Forward: Towards Bail Justice
A truly equitable bail system in India has to be based on equality and dignity. Some essential steps are:
- Mandatory socio-economic profiling prior to fixing bail quantum.
- Increased employment of personal bonds, particularly for non-violent and first-time offenders.
- Training magistrates in bail jurisprudence and poverty sensitivity.
- Improving legal aid systems to provide effective bail advocacy.
- Application of technology to simplify verification and minimize reliance on middlemen or touts.
Conclusion
The presumption of innocence is the foundation of criminal justice — but in practice, it gives way to the weight of poverty. For the poor, freedom is not a right—it is something they have to pay for, and often something more than money: lost jobs, disrupted families, and permanent stigma.
Our current bail system is less a calculation of risk and more a determination of resources. Unless we recognize and reform this fundamentally unfair framework, our courts will keep locking up the poor not because of what they’ve done, but because of what they lack.
It is time we inquired: Is justice really served when your bank account determines your freedom?
