Apoorv Bisht is currently pursuing LL.M. in Corporate Law at National Law University Odisha and holds an LL.B. from the Faculty of Law, University of Delhi. His areas of interest include Intellectual Property Law and Corporate Law. He has interned with United World (Patent and Trademark Attorneys), where he gained practical exposure to trademark prosecution and litigation before the Delhi High Court. He has also authored research papers, editorials, and newsletters on contemporary legal issues.
“In our criminal justice system, the process is the punishment.”[1]
— CJI NV Ramana (Former Chief Justice of India)
While hearing the case of Vaibhav Singh v State of Uttar Pradesh,[2] the Supreme Court of India, on April 29, 2026, expressed “shock” and “deep disappointment”. The petitioner was arrested in March 2017 and had been languishing as an undertrial for nine years. He had been denied bail by the Allahabad High Court on the technical ground that the trial had commenced, a procedural hurdle that effectively subverts the constitutional guarantee of a speedy trial and validates indefinite pre-trial detention without conviction.
This case is a dark reflection of the system. The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, was touted as a “decolonized” and “transformative” step towards a rights-based criminal justice system, but the ground reality is still caught up in a colonial and carceral logic. This article claims that the BNSS, despite its digital appearance, has not been successful in eradicating the structural “interpretative atrophy” in the judiciary. In contemporary India, the “process” is still the “punishment” and is essentially an attack on the very essence of Article 21.[3]
I. Bail Reform or Bail Illusion? The First-Time Offender Debate
One of the most widely discussed reforms in the BNSS is Section 479,[4] which is similar to and expands on Section 436A of the former CrPC.[5] It requires the release of the under-trial based on a personal bond (a guarantee of being present in the court on future dates) for first-time offenders who have served one-third of the maximum sentence. This appears to be a perfect solution to the issue of prison crowding at first glance.
But an analysis of the critical content shows a “Tier of Rights” theory. The absence of serious offenses (such as Section 302, Murder) or those under special statutes, from these automatic protections establishes a hierarchy of crimes. In the case of persons such as Vaibhav Singh, the “seriousness of the offense” is a constant reminder of the suspension of liberty. The BNSS does not reform the substance of bail; it merely digitizes the logistics of incarceration, excluding the very categories most likely to suffer from extended delays in incarceration. This begs a question: How can a reform be considered “transformative” if it allows the most vulnerable undertrials to “rot” under the “gravity of the crime” doctrine?
II. Pretrial Purgatory: When Process Becomes the Penalty
In order to comprehend the crisis, we need to shift from legal complaint to criminological critique. The “Process as Punishment” phenomenon refers to how the pre-trial process, which includes aggressive arresting, logistical adjournments, and stringent bail requirements, essentially circumvents the trial to deliver punitive outcomes.
The State psychologically tortures, socially stigmatizes, and deprives the undertrial of the means of livelihood even before a verdict is passed. If a man spends nine years in prison and is later acquitted, he has not been processed by the state, but rather victimized via an administrative bypass. The BNSS offers new terminology but falls short in its attempt to tackle this psychological and economic devastation.
III. Weaponized Procedures: The Court’s Pushback Against Onerous Bail
Recent 2026 rulings highlight the ongoing tug-of-war between judicial rhetoric and procedural reality:
Weaponizing Conditions: In Narayan v State of MP,[6] the judiciary stated that Section 480(3) BNSS,[7] which allows onerous bail conditions, cannot be used arbitrarily in minor offences. This was a much-needed criticism of trial courts, which were imposing exorbitant bail bonds as a de facto denial of liberty to the poor.
Caste and Humiliation: The Supreme Court in In Re: Condition Being Imposed While Granting Bail by High Court of Orissa,[8] declared that caste-colored criteria, such as requiring accused persons from marginalized communities to perform manual cleaning duties at police stations, as a precondition for bail, were unconstitutional. This intersection shows that carceral practices tend to reflect the social order, where reformative work is assigned to the marginalized.
State-Sponsored Delay: In Re: Directions for Bail,[9]CJI Surya Kant criticized the state prosecutors’ demand for the casual adjournments. This state-sponsored delay is a strategic tool used to coerce pleas or ensure that the accused is taught a lesson through detention.
IV. The Architecture of Injustice: Prisons as Design Failures
In addition to the law, it is imperative to look at the “Carceral Geography” of India. The NCRB Prison Statistics 2023 and the India Justice Report, 2025, show that with 130% occupancy, the Indian prisons are overcrowded, with 75-80% of the inmates being undertrials.
This isn’t a legal backlog; it’s a design failure. The SC/ST/OBCs and religious minorities are over-represented, indicating a racialized and caste-coded carceral net. While the BNSS pushes for digital trials and e-summons, these are superficial measures. With so much attention given to the technology (digital records, video calls), the actual suffering of the prison inmates is thrown under the carpet. Living in the tiny, cramped spaces with a lack of proper sunlight and surviving in unhygienic conditions (60 prisoners share one toilet/washroom in a barrack), it causes body degradation. Thus, ‘digital justice’ is a façade. The “process” is a physical punishment in which the State gives precedence to “carceral security” over “presumption of innocence.
V. The Creeping Exception: How Special Laws Hijack Liberty
The crisis is compounded by the exceptional bail conditions in the PMLA (Section 45)[10] and UAPA [Section 43D(5)]. These statutes are beginning to contaminate the general criminal law thinking, through the mechanism of the “reverse burden of proof.” Judges are afraid of being labeled soft on national security or financial crimes, and use a “preventive detention” mentality even for BNS crimes. What happens when the standard for bail is based on what statute is applied rather than the evidence of guilt? The BNSS has failed to build a firewall against this carceral “creep.”
Alarmingly, the jurisprudence evolved around these special statutes has come to accept the notion that extended imprisonment can be constitutionally legitimate if the charge is deemed “grave” enough. Section 43D(5) of the UAPA[11] gives the courts an effective power to refuse bail when the accusations appear prima facie to be true, and Section 45 of the PMLA provides the notorious “twin conditions,” which would mean that the accused would have to prove his or her innocence before the trial even starts. Such a presumption of guilt would turn bail hearings into mini-trials and change the very structure of criminal procedure. While the Supreme Court has consistently warned that the severity of the statute cannot overrule the concept of Article 21, particularly in cases involving prolonged detention, the growing number of exceptions can make preventive incarceration the norm of the Indian criminal justice system. The fundamental principle of ‘Bail is the Rule, Jail is the Exception’ has ceased to be a judicial rule; it is now a constitutional casualty.
VI. From Rhetoric to Reality: A Roadmap for Systemic Reform
To move beyond rhetoric, I propose four practically implementable reforms:
1. Judicial Accountability (The “Bail Audit”):
This audit will act as a report card for the judges with an aim of preventing ‘defensive judging’. There must be a performance-based mechanism instituted for the High Court and District Court judges. The consistent reversal of bail decisions by the SC based on ‘shocking’ violations of Article 21 (as in the Vaibhav Singh case) shall be officially recorded and shall have a negative impact on the performance record of the judge. The aim is to fix the accountability of the judges for wrongly denying bail.
2. Statutory Timelines for Liberty:
This reform calls for a deadline for freedom. Presently, there is no timeline for the judges to decide on the bail applications. This leads to the application lying for weeks or even months in the court, while the prisoner continues to suffer in jail. There shall be an amendment to the BNSS to provide for a maximum period of 14 days for the decision on bail applications. In a bail court, delay is not just delay – it’s the actual theft of liberty.
3. The Pre-Trial Services Agency (PTSA):
India needs to establish an independent Pre-Trial Services Agency, as in the U.K. and the U.S. This agency can substitute the keeping of non-violent accused persons in custody with electronic monitoring, including GPS tracking. This would help to alleviate the overcrowding situation in jails without compromising on the availability of accused persons for trial. This can be achieved through public-private partnerships, where a private firm can utilize low-cost GPS technology for the surveillance of the prisoner.
However, considering concerns relating to data privacy, excessive surveillance, and the commercialization of incarceration, such a system must function under strict judicial and statutory oversight. An independent regulatory authority should supervise personal data, with courts retaining exclusive control over monitoring orders and access to surveillance records. Private entities must be strictly limited to providing technological infrastructure, exercising zero policing or coercive powers. Ultimately, mandatory judicial reviews, data-deletion safeguards, and parliamentary accountability must ensure electronic monitoring remains a constitutional alternative to detention rather than a tool of unchecked surveillance.
4. Decriminalizing “Process Crimes” (The “Graduated Sanction Scale”):
This reform aims to decouple administrative non-compliance from actual criminal conduct. Currently, technical defaults—such as missing a single hearing date or failing to promptly update a residential address—frequently trigger the immediate, reflexive revocation of bail. To remedy this, the BNSS must be amended to introduce a mandatory Graduated Sanction Scale. First-time and non-intentional procedural lapses should be met with civil penalties, written warnings, or community-based “Restorative Justice” sessions instead of automatic re-incarceration. By replacing immediate detention with administrative corrections for minor logistical mistakes, the state can stop technical errors from unnecessarily sending people back to jail.
VII. The Final Verdict: Liberty as a Right, not a Favor
Unless there is a fundamental change in the consciousness of judges, BNSS will remain ‘old wine in a new bottle‘. Bail should no longer be considered as a concession or gift of the court or state; it should be considered as a Constitutional Imperative.
A criminal justice system that is dedicated to constitutional morality should not routinely put people in prison before they are adjudicated. Our democracy is measured not by the grandiloquence of our new laws, but by the swiftness of the system in releasing those it cannot prove guilty. Unless we fundamentally reorient the BNSS toward liberty, the promise of “reformed criminal procedure” will remain nothing more than a legislative illusion.
[1] CJI NV Ramana, ‘Process as Punishment’ (Address at the 18th All India Legal Services Authorities Meet, Jaipur, 16 July 2022)
[2] Vaibhav Singh v State of Uttar Pradesh Supreme Court of India, SLP (Crl) No 7416 of 2026 (order dated 29 April 2026)
[3] Constitution of India 1950, art 21
[4] Bharatiya Nagarik Suraksha Sanhita 2023, s 479
[5] Code of Criminal Procedure 1973, s 436
[6] Narayan v State of MP High Court of Madhya Pradesh, Miscellaneous Criminal Case No 440/2026 (15 April 2026)
[7] Bharatiya Nagarik Suraksha Sanhita 2023, s 480(3)
[8] In Re: Condition Being Imposed While Granting Bail by High Court of Orissa Supreme Court of India, Suo Motu Writ Petition (Crl) No 2/2026 (4 May 2026)
[9] In Re: Directions for Bail Supreme Court of India, Suo Motu Writ Petition (Crl) No 5/2026 (11 May 2026)
[10] Prevention of Money Laundering Act 2002, s 45
[11] Unlawful Activities (Prevention) Act 1967, s 43D(5)
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