Undertrial Bail Rights in India: Section 479 BNSS and the Pre-Conviction Constitutional Compact

Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has become operational in Indian prisons. The Supreme Court’s direction dated 14 August 2024 in Re: Inhuman Conditions in 1382 Prisons has made reform of undertrial bail an immediate concern for prison authorities, courts and legal-aid institutions. Yet statutory implementation requires a clear constitutional foundation if the reform is to operate as a durable right rather than as a temporary administrative measure. This rewritten paper develops that foundation through the idea of a Pre-Conviction Constitutional Compact (PCCC).

Abstract

In 2022, undertrial prisoners constituted approximately 75.8% of India’s prison population, numbering more than 4.34 lakh people. Despite this scale, constitutional doctrine has generally treated the undertrial as a person who merely receives the ordinary fundamental rights available to everyone, rather than as a constitutionally distinct category. This paper argues that a person detained before conviction occupies a special constitutional position because guilt has not yet been established. The proposed Pre-Conviction Constitutional Compact rests on three connected pillars: a presumption in favour of liberty, a minimum standard of dignified treatment, and enforceable procedural safeguards. Together, these pillars seek to convert existing constitutional principles into practical and judicially enforceable protections for undertrials.

Keywords

• Undertrial prisoners
• Pre-trial detention
• BNSS 2023
• Article 14
• Article 21
• Article 39A
• Presumption of innocence
• Bail
• Constitutional remedies
• Pre-Conviction Constitutional Compact

I. The Constitutional Invisibility of the Undertrial

Section 479 of the BNSS represents a major statutory development in the law relating to undertrial bail. Its implementation, together with Supreme Court monitoring, has placed the undertrial problem in immediate practical focus. Prison superintendents must identify prisoners who satisfy the statutory conditions, courts must act on the relevant bail triggers, and legal-aid institutions must facilitate representation. What remains necessary is a constitutional explanation of why these duties exist, what minimum standards they must meet, and what should happen when the State fails to perform them.

As of 31 December 2022, more than 4,34,302 persons who had not been convicted were confined in Indian prisons. Their legal position is fundamentally different from that of convicted prisoners because they remain presumed innocent. The PCCC is proposed as a framework through which the statutory reform can become an enforceable constitutional entitlement rather than a matter dependent upon administrative discretion.

The Supreme Court has addressed parts of the problem over several decades. Hussainara Khatoon recognized speedy trial as an element of Article 21. Arnesh Kumar introduced proportionality into decisions concerning arrest and custody. Satender Kumar Antil emphasized that bail should ordinarily be granted except in appropriate exceptional categories. These decisions are important, but the argument developed here is that they have largely proceeded from the general rights of persons in custody instead of articulating a separate constitutional status for people who have not been found guilty.

The BNSS, which came into force on 1 July 2024, lowered the period of custody relevant to mandatory bail under Section 479. In Re: Inhuman Conditions in 1382 Prisons, the Supreme Court directed immediate retrospective application of Section 479. The present proposal seeks to supply the constitutional structure that can make this reform durable.

II. Why the Undertrial Warrants a Distinct Constitutional Category

A. Article 21 and the Structure of Pre-Trial Liberty

Pre-trial detention is commonly examined under Article 21 through the principle, developed after Maneka Gandhi, that any procedure depriving a person of liberty must be fair, just and reasonable. That standard is important but does not fully answer the special question presented by an undertrial. The issue is not simply whether an existing restriction on liberty crosses a constitutional threshold. It is also whether the State has sufficient constitutional grounds to detain a person whom it has not proved guilty.

The proposed approach treats liberty as the starting point and detention as an exception requiring justification by the State. The person awaiting trial should not carry the primary burden of proving why detention is unnecessary. Rather, the State should explain why continued custody is justified. This approach is consistent with Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR), which provides that pre-trial detention should not be the general rule.

B. Article 14 and the Two Dimensions of Equality

Article 14 has two relevant applications in the undertrial context. First, the anti-arbitrariness principle associated with E.P. Royappa means that a remand order should identify the actual risk that warrants continued detention. An order that simply repeats statutory language without connecting the stated risk to the particular accused may become arbitrary. Second, Article 14 permits attention to meaningful differences between categories of persons. A convicted prisoner has been adjudged guilty; an undertrial has not. Treating both groups in materially identical ways, particularly where the treatment has a punitive rationale, therefore requires careful constitutional justification.

III. The Pre-Conviction Constitutional Compact

The principal purpose of the PCCC is not to invent an entirely new set of rights. Most of the proposed protections can be traced to existing constitutional principles. Its contribution is to arrange those rights into a practical system of enforceability so that an undertrial can receive protection without being required to begin fresh litigation at every stage.

Comparative jurisprudence supports this approach. In Buzadji v. Republic of Moldova, the European Court of Human Rights emphasized that continued detention requires relevant and sufficient reasons from the beginning of remand and that courts must relate those reasons to the individual accused rather than merely reproducing statutory grounds.

Pillar I – Presumptive Liberty and the Constitutional Burden of Justification

The first pillar changes the central question at each remand hearing. Instead of asking whether the accused has successfully established a case for bail, the court should ask whether the State has demonstrated sufficient grounds for continued detention.

The remanding magistrate should issue a written order identifying the concrete risk that makes continued detention necessary, such as flight, interference with witnesses, or further offending.

At every stage of remand, the court should consider whether a less restrictive measure could adequately address the identified risk.

Where an order fails to provide the required individualized reasons or least-restrictive-means assessment, the matter should automatically be referred to the Sessions Court without requiring an application from the accused.

Section 479 of the BNSS can serve as the statutory foundation for this framework, while the PCCC would establish a constitutional minimum below which future legislative or administrative measures should not fall.

Pillar II – A Dignitarian Minimum as Enforceable Rights

The second pillar translates the constitutional value of dignity, including principles reflected in Common Cause v. Union of India, into concrete treatment standards for undertrials. The proposal identifies four minimum entitlements that should operate as enforceable rights:

The source document notes that Prison Statistics India 2022 recorded co-location of undertrials and convicted prisoners in 68% of surveyed prisons. On the proposed approach, this would not merely be an administrative irregularity; it would raise issues under Articles 14 and 21. Each of these minimum entitlements could be pursued through a complaint before the District Legal Services Authority without requiring a separate statute.

Pillar III – Enforceable Procedural Guarantees

The third pillar moves the responsibility for procedural compliance from the undertrial to the State. At present, an accused seeking bail generally has to make an application, secure representation, attend a hearing and obtain an order. Under the proposed model, the State would carry the primary responsibility.

• Legal representation should be provided by the State from the first remand hearing without waiting for a request.
• A bail hearing should take place within 24 hours of arrest and within seven days of each later remand.
• When the Section 479 threshold is reached, the jail superintendent should automatically file the necessary bail application as a constitutional duty.
• Failure to perform the required duty should permit supervisory relief under Article 226.

This arrangement is presented as constitutionally consistent with the presumption of innocence because procedural responsibilities would be placed upon the State rather than on a person already deprived of liberty.

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IV. Section 479 and the Exclusion of Capital-Offence Cases

Section 479 excludes offences punishable with death or life imprisonment from its reduced bail threshold. The paper identifies a structural constitutional question: the seriousness of the accusation does not remove the legal presumption of innocence. A person accused of murder remains legally innocent in the same sense as a person accused of a less serious offense.

The gravity of an allegation may, however, affect the State’s ability to demonstrate a concrete risk justifying detention. The proposed solution is therefore a constitutional interpretation rather than invalidation of the exclusion. On this reading, the exclusion may be understood as reflecting a stronger presumptive case for continued custody in capital-offence matters, while still requiring the State to establish individualized justification.

The accused should receive a mandatory Pillar III hearing within seven days and should be able to challenge detention by demonstrating the absence of a concrete and individualized risk. This interpretation is intended to reconcile Section 479 with the constitutional standards discussed in Bachan Singh without requiring the court to strike down the provision.

V. Objections and the Proposed Reform Agenda

1. Objection: The Constitution Does Not Create Separate Procedural Categories

One objection is that fundamental rights are guaranteed to all persons and the Constitution does not expressly create a separate rights regime for undertrials. The response offered by the paper is that Article 14 is not limited to identical treatment. Where general treatment produces systematic inequality, differentiated protection may be constitutionally necessary. The undertrial occupies a particular position because the criminal justice system acts against the person without a finding of guilt.

2. Security and Public-Protection Concerns

Security interests do not necessarily conflict with the PCCC. The first pillar does not abolish detention; it requires detention to be supported by written and individualized reasons. The third pillar does not eliminate bail conditions; it requires those conditions to be considered through a hearing in which the accused has legal representation.

3. Institutional Capacity

The paper also responds to the argument that automatic bail mechanisms could increase pressure on courts. It contends that a large undertrial population itself contributes to institutional backlog and that automatic mechanisms may divert cases that should not remain in custody. Limited administrative capacity, on this reasoning, cannot by itself defeat an established constitutional right; enforcement must be adequately supported by the State.

Three-Tier Reform Programme

Conclusion

The central proposition of this paper is that an undertrial should be recognized as a distinct constitutional category. The relevant protections can be derived from Articles 14, 21 and 39A, India’s obligations under the ICCPR, and decades of Supreme Court jurisprudence. The need is therefore not simply for additional rights, but for a practical architecture that makes existing rights effective for the more than 4.34 lakh people who, according to the source data, were undertrials in 2022.

The Pre-Conviction Constitutional Compact supplies that architecture through three connected ideas: presumptive liberty, a minimum standard of dignified treatment, and enforceable procedural safeguards. Its mechanisms are presented as compatible with existing constitutional doctrine and comparable international approaches. Section 479 of the BNSS and the Supreme Court’s continuing supervision create an opportunity to connect these statutory and judicial developments into a coherent constitutional framework.

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