Custody or Conditional Release? A Cross-Jurisdictional Study on Bail and Human Rights in India, the United States, and the United Kingdom[1]

Abstract

This paper provides a comparative analysis of bail systems in India, the United States, and the United Kingdom, focusing on how these systems intersect with human rights principles. Bail is a critical mechanism in criminal justice systems, ensuring that individuals are not subjected to undue pre-trial detention, yet the application of bail varies significantly across these jurisdictions. The study explores the legal frameworks governing bail, including the Code of Criminal Procedure in India, the Eighth Amendment and Bail Reform Act in the United States, and the Bail Act of 1976 in the United Kingdom. It highlights the presumption of innocence as a common principle across these countries, while also critically analyzing challenges such as the misuse of preventive detention laws in India (especially under statutes like the Unlawful Activities Prevention Act), the disproportionate impact of the cash bail system in the U.S., and concerns over conditional bail and potential biases in the UK system.

Furthermore, the paper investigates the broader human rights implications of each country’s bail system, particularly in relation to arbitrary detention, access to justice, and the socioeconomic disparities that often affect those seeking bail. The research reveals that while all three countries uphold the right to bail, the structures and practices in place create significant disparities in how bail is granted or denied, with grave consequences for those impacted. By engaging with both legal texts and case law, the paper advocates for ongoing reforms in each jurisdiction to ensure that bail practices are more equitable, transparent, and in line with international human rights standards. Ultimately, the study calls for global cooperation and dialogue to promote best practices in pre-trial justice and the protection of individual liberties across legal systems.

1. Introduction

The right to bail is a cornerstone of criminal justice systems worldwide, ensuring that individuals are not subjected to unnecessary pre-trial detention and that their liberty is protected while awaiting trial. The concept of bail is fundamentally tied to the principle of the presumption of innocence, which holds that individuals should not be considered guilty before proven so in a court of law. However, the legal provisions and practices governing bail differ across jurisdictions, resulting in varying interpretations and implementations of this right.

This paper examines the bail systems in three countries: India, the United States, and the United Kingdom. While all three are democratic nations with legal traditions rooted in common law, their bail frameworks reflect different approaches, influenced by unique historical, cultural, and social contexts. The aim of this study is to explore the key similarities and differences in the legal provisions governing bail, as well as the human rights implications that arise from the application of these provisions in practice.

In India, bail laws are primarily governed by the Code of Criminal Procedure, 1973, and are often influenced by broader concerns of national security, especially under laws such as the Unlawful Activities Prevention Act (UAPA). While bail is generally seen as the rule, preventive detention laws and the use of remand often create challenges in balancing individual liberty with the state’s security concerns.

In the United States, bail laws have been deeply intertwined with constitutional protections, notably the Eighth Amendment, which prohibits excessive bail. Despite this, the cash bail system has raised significant concerns over fairness, disproportionately affecting low-income defendants and contributing to pre-trial detention for those who cannot afford to pay bail, regardless of their flight risk or potential danger to the community.

The United Kingdom, with its Bail Act of 1976, provides a system where bail is the presumption but can be denied based on the nature of the offense or concerns about reoffending. The system allows for conditional bail, which places restrictions on individuals’ freedom pending trial. While intended to balance individual liberty with public safety, the system has been criticized for its potential biases, particularly in relation to racial or socio-economic factors.

By analyzing these three countries’ bail systems through a comparative lens, this paper seeks to illuminate how different legal traditions, policy choices, and human rights frameworks shape the practice of bail and pre-trial detention. Furthermore, it examines the consequences of these systems for defendants, particularly those who face prolonged detention without trial or are subjected to unfair conditions due to financial or social circumstances.

Ultimately, the goal is to assess whether current bail practices in these jurisdictions adhere to the principles of human rights, and to propose potential reforms that could better align them with international standards, ensuring fairness, equity, and justice for all individuals.

2. Bail in India

Bail in India is governed by the Code of Criminal Procedure, 1973 (CrPC), which outlines the legal framework for the release of individuals accused of crimes before trial. Bail is considered a right, with the understanding that it is generally the norm to grant bail unless specific circumstances justify its denial. India’s bail system seeks to balance individual liberty with public safety, but certain provisions have led to controversies, especially concerning preventive detention laws and the use of bail in cases involving national security.

2.1. Legal Framework Governing Bail in India

The Criminal Procedure Code, 1973 is the primary legislation regulating bail in India. The provisions relevant to bail are mainly contained in Sections 437, 438, and 439[2].

• Section 437: Deals with bailable offenses and provides that a person accused of a non-bailable offense may be granted bail only if there are reasonable grounds to believe that the person is not guilty of the offense and is unlikely to commit further crimes. Courts also consider the likelihood of the accused fleeing or interfering with evidence or witnesses.
• Section 438: This section grants the right to seek anticipatory bail, i.e., bail granted in anticipation of arrest, which is a safeguard against unnecessary detention before trial.
• Section 439: Provides the power for higher courts (such as the Sessions Court and the High Court) to grant bail in cases that may involve more serious offenses, including those punishable by death or life imprisonment.

The Indian legal system assumes the presumption of innocence until proven guilty, meaning that pre-trial detention should be avoided, and bail should generally be granted unless there are exceptional reasons to deny it.

2.2. Bail and Preventive Detention

While bail is a right for many accused persons, India’s legal system contains provisions that allow for the denial of bail under certain conditions, particularly for individuals accused of offenses related to national security and terrorism.

One of the most controversial laws regarding bail is the Unlawful Activities (Prevention) Act, 1967 (UAPA)[3]. This law grants authorities significant powers to detain individuals suspected of involvement in terrorist activities, often without sufficient evidence or a formal trial. Under the UAPA, individuals can be held for prolonged periods without bail, often in violation of international human rights norms.

In the case of [4]Kartar Singh v. State of Punjab (1994), the Supreme Court of India upheld the validity of preventive detention laws under certain circumstances. However, the Court also emphasized that such laws must be exercised with caution and cannot be used arbitrarily. The use of such laws in granting or denying bail has sparked debate about their compatibility with human rights, particularly with regard to arbitrary detention and prolonged pre-trial incarceration.

2.3. Judicial Discretion and Bail

The decision to grant or deny bail in India is generally within the discretion of the court. While bail should be granted unless there are compelling reasons for its denial, the discretion of judges has been questioned in several instances where individuals are denied bail for prolonged periods.

In State of Rajasthan v. Balchand (1977), the Supreme Court ruled that bail should not be denied without strong reasons. The ruling reinforced the principle that the primary purpose of bail is to ensure the accused’s presence at trial, not to punish the accused before a conviction. However, concerns have been raised regarding judicial consistency, especially in cases involving high-profile or politically sensitive matters. There are instances where individuals are denied bail despite the lack of substantial evidence, contributing to the issue of arbitrary detention.

2.4. Challenges in the Indian Bail System

• Preventive Detention Laws: Laws such as the National Security Act (NSA) and UAPA have been widely criticized for enabling prolonged detention without trial, often for individuals who have not been convicted of any crime. These laws allow detention for up to a year without trial, and bail is often denied for those accused under these provisions.
• Overcrowding in Prisons: The Indian prison system has long been plagued by overcrowding, and many individuals are held in detention for extended periods without trial due to delays in the judicial process. According to the National Crime Records Bureau (NCRB)[5], over 70% of prisoners in India are undertrial prisoners, which highlights the inadequacy of the bail system in addressing the issue of pre-trial detention.
• Bail for Vulnerable Groups: Vulnerable populations, such as marginalized communities, women, and the economically disadvantaged, often face significant challenges in securing bail. In particular, the poor are disproportionately affected by the cash bail system, where individuals who cannot afford bail are left in detention while awaiting trial, while wealthier defendants can purchase their release. This disparity raises serious concerns regarding the fairness and equality of the bail system in India.

2.5. Case Study: The Jagtar Singh Johal Case

The case of Jagtar Singh Johal[6], a British citizen arrested in India on charges of involvement in terrorism and murder, provides a stark example of the challenges within the Indian bail system. Johal has been detained since 2017 without trial, despite claims of torture and violations of his human rights during detention. His case highlights the use of preventive detention laws to prolong incarceration without trial, raising concerns over the denial of bail and the potential abuse of laws like UAPA in cases that involve national security issues.

Johal’s case has attracted international attention, with calls from human rights groups and political figures for his release on bail or a fair trial. His prolonged detention without bail exemplifies the challenges faced by those accused under national security laws, who are often denied the opportunity to challenge the legality of their detention.

2.6. Bail Reform and Human Rights

While India’s bail system provides for judicial oversight and mechanisms to protect individual rights, there have been significant calls for reform. Human rights organizations such as Amnesty International and Human Rights Watch have consistently advocated for reforms to the bail system to prevent arbitrary detention, improve access to justice, and ensure the fair treatment of all accused individuals.

Recent developments have seen the Indian judiciary take steps to address some of these concerns. The Supreme Court of India has made rulings that emphasize the importance of granting bail to prevent the violation of an individual’s right to personal liberty. For example, in the Maneka Gandhi v. Union of India (1978)[7] case, the Court emphasized the importance of ensuring that legal processes do not infringe upon fundamental rights, including the right to a fair trial and the right to personal liberty.

3. Bail in the United States

Bail in the United States is governed by a combination of federal and state laws, judicial discretion, and constitutional protections. The U.S. legal framework for bail is grounded in the [8]Eighth Amendment of the Constitution, which prohibits excessive bail and provides the foundation for a system that aims to balance the presumption of innocence with the state’s interest in ensuring a defendant’s appearance at trial and protecting public safety. However, issues surrounding bail have sparked extensive debate, particularly in relation to the cash bail system, the detention of low-income individuals, and the pre-trial detention of individuals who cannot afford bail.

3.1. Legal Framework Governing Bail in the United States

The Eighth Amendment guarantees the right to be free from excessive bail, a provision intended to protect defendants from being unfairly deprived of their liberty before trial. In practice, however, the U.S. bail system involves a combination of state and federal rules that allow courts considerable discretion in setting bail amounts and conditions.

At the federal level, bail laws are governed by the [9]Bail Reform Act of 1984, which permits the pretrial detention of defendants under certain circumstances. Specifically, under the Bail Reform Act, a defendant may be detained without bail if they are deemed to be a flight risk or a danger to the community. This law focuses on ensuring that the defendant appears for trial and does not pose a threat to others.

At the state level, bail laws vary significantly, as each state has its own rules and procedures for determining bail. In many states, courts typically set bail amounts based on the severity of the offense, the defendant’s criminal history, and the likelihood that they will appear for trial. However, in some cases, this process has been criticized for unfairly penalizing low-income individuals who cannot afford bail, leading to their prolonged detention before trial.

3.2. The Cash Bail System and its Criticism

One of the most controversial aspects of the U.S. bail system is the cash bail system, which requires defendants to pay a monetary amount to be released from custody before their trial. While cash bail is intended to ensure that a defendant will appear at trial, critics argue that it disproportionately affects low-income defendants who may not have the financial resources to post bail. As a result, many individuals—especially those from marginalized communities—remain incarcerated before trial simply because they cannot afford the bail amount, even if they are presumed innocent.

The cash bail system has been widely criticized for exacerbating inequalities in the criminal justice system. Those who are detained because they cannot afford bail may experience significant negative consequences, such as losing their job, facing family disruption, or even pleading guilty to a crime they did not commit just to secure release. Studies have shown that pretrial detention—even for relatively short periods—often increases the likelihood of conviction and harsher sentences.

One of the most high-profile cases that drew attention to the issue of cash bail was [10]Kalief Browder, a young man who was arrested at the age of 16 for allegedly stealing a backpack. He was unable to afford bail and spent almost three years in pretrial detention at Rikers Island in New York City, much of it in solitary confinement. Browder was never convicted of a crime, but his case drew national outrage and calls for bail reform after his release.

3.3. Pre-Trial Detention and Preventive Detention

In the United States, pretrial detention refers to the practice of holding a defendant in custody until their trial. While the Bail Reform Act of 1984 allows for the possibility of pretrial detention, it limits such detention to defendants who are considered either a flight risk (meaning they are likely to flee and avoid trial) or a danger to the community (meaning they pose a risk to others if released).

Under this law, judges have the authority to deny bail entirely in cases where the defendant is deemed to pose a risk of flight or danger. This provision is commonly invoked in cases involving serious offenses such as murder, terrorism, or drug trafficking. However, the U.S. legal system has faced significant scrutiny regarding the preventive detention of individuals who are held without bail for extended periods while awaiting trial, especially in cases where there is insufficient evidence to justify such detention.

The use of pretrial detention has raised concerns about the violation of a defendant’s constitutional rights. Critics argue that holding individuals without bail before trial undermines the presumption of innocence and disproportionately affects poorer individuals who cannot afford bail, even when they may not pose a flight risk or threat to public safety. The issue of preventive detention has led to widespread calls for bail reform to ensure that detention is used sparingly and only when absolutely necessary.

3.4. Bail Reform and Recent Movements

In recent years, there has been a growing movement in the U.S. to reform the bail system. Advocates for bail reform emphasize the need to end the cash bail system and shift toward alternatives that focus on the risk a defendant poses rather than their ability to pay. The Bail Reform Act and subsequent reforms have led to changes in some jurisdictions, including the elimination of cash bail for certain offenses and the expansion of pretrial services, such as electronic monitoring and supervised release programs.

Several states, including California, New Jersey, and Illinois, have implemented bail reforms in response to public outcry over the discriminatory effects of cash bail. For example, in New Jersey[11], a comprehensive bail reform law passed in 2017 eliminated the use of cash bail for most offenses and introduced a system based on a defendant’s risk to the community and likelihood to appear at trial, instead of financial status. The reform has been credited with reducing the number of people held in pretrial detention and decreasing racial disparities in the bail system.

The [12]California Supreme Court also ruled in 2018 that wealth-based detention violated due process, leading to significant changes in the state’s bail system. While some reform advocates call for a complete elimination of cash bail, others focus on improving risk assessment tools and creating more equitable systems for pretrial release.

3.5. The Human Rights Implications of Bail in the U.S.

The U.S. bail system has significant human rights implications, particularly in relation to equal protection and the right to liberty. The 14th Amendment’s Equal Protection Clause[13] has been invoked to challenge the disproportionate impact of cash bail on poor and minority defendants. As studies have shown, people of color—particularly Black and Latino individuals—are more likely to be detained pretrial and face higher bail amounts compared to white defendants charged with similar offenses.

Human rights organizations such as Amnesty International and Human Rights Watch have consistently raised concerns about the inhumane treatment of pretrial detainees, particularly those who are held for long periods before trial. They argue that pretrial detention, especially for nonviolent offenses, should be used sparingly and only when absolutely necessary to ensure a defendant’s appearance at trial or to protect public safety.

4. Bail in the United Kingdom

The bail system in the United Kingdom is a core part of its criminal justice framework, balancing the rights of the accused with the need to protect public safety and ensure the effective administration of justice. The primary legislation governing bail in the UK is the Bail Act 1976, which provides a statutory presumption in favour of bail. The UK’s approach to bail reflects the principle of the presumption of innocence, which is fundamental to human rights and criminal law, but has come under scrutiny for concerns about conditional bail, pre-charge detention, and disparities in application.

4.1. Legal Framework: Bail Act 1976

The Bail Act 1976 establishes the default legal position that a person accused of a criminal offense has a right to be granted bail unless specific exceptions apply. These exceptions include where there are substantial grounds for believing that, if released on bail, the defendant would:

• Fail to surrender to custody,
• Commit further offenses while on bail,
• Interfere with witnesses or otherwise obstruct the course of justice[14].

The decision to grant or refuse bail is made by a magistrates’ or crown court, depending on the severity of the offense. The Act applies both to those already charged and to certain circumstances involving pre-charge bail.

In R v. Crown Court at Lewes, ex parte Hill (1979), the High Court confirmed that bail should be refused only when the court is satisfied that the risks specified in the Act are present[15].

4.2. Conditional Bail and Its Implications

Courts and police officers may impose conditions on bail to mitigate the perceived risks of granting bail. These can include:

• Residing at a particular address,
• Reporting regularly to a police station,
• Avoiding contact with specific individuals,
• Complying with curfews or electronic tagging[16].

While conditional bail serves a preventive function, it can sometimes become overly restrictive, particularly for individuals who have not yet been convicted of any crime. Research by organizations such as Fair Trials International and the Howard League for Penal Reform has shown that some bail conditions may resemble punitive sanctions, disproportionately affecting the rights and freedoms of defendants, especially in cases where conditions are vague or overly burdensome[17].

4.3. Pre-Charge Bail and Police Powers

The Police and Crime Act 2017 introduced significant reforms to the use of pre-charge bail, which had previously been used for extended periods without sufficient oversight. The Act imposed a 28-day initial limit on pre-charge bail, extendable up to 3 months with senior officer approval, and further only with magistrates’ authorization[18].

However, concerns have re-emerged following the Police, Crime, Sentencing and Courts Act 2022, which reversed several reforms and allowed police greater discretion in imposing and extending pre-charge bail. Critics argue this creates a risk of indefinite legal limbo for individuals under suspicion but not charged, with restrictions placed on their freedom without formal accusation or trial[19].

4.4. Youth and Vulnerable Populations

The bail system’s impact on young people and vulnerable groups has drawn significant criticism. Although the UN Convention on the Rights of the Child, to which the UK is a party, emphasizes that detention of minors should be a last resort, many young people are remanded to custody due to lack of accommodation or inadequate community supervision options[20].

In R (on the application of K) v. Parole Board (2003), the court acknowledged that vulnerable individuals, particularly those with mental health conditions, face additional hardship under restrictive bail conditions and require special consideration[21].

4.5. Human Rights Considerations

The UK is bound by the European Convention on Human Rights (ECHR), particularly Article 5 (right to liberty and security) and Article 6 (right to a fair trial). Courts must ensure that bail decisions comply with these rights. The Human Rights Act 1998 incorporates the ECHR into domestic law, and UK courts must interpret legislation, including the Bail Act 1976, in a manner consistent with the Convention[22].

Despite this, the European Court of Human Rights (ECtHR) has ruled against the UK in several cases where individuals were denied bail without sufficient justification or procedural safeguards. In Letellier v. France (1991) (though not a UK case), the ECtHR emphasized that the reasons for pre-trial detention must be “relevant and sufficient,” a principle that also applies to UK law under ECHR obligations[23].

4.6. Bail Reform Debates and Recent Developments

Recent legal and public policy discussions in the UK have focused on the need to make the bail system more transparent, consistent, and respectful of individual rights. Advocacy groups such as JUSTICE, Liberty, and Amnesty International UK have called for reforms to:

• Limit the use of custodial remand,
• Ensure greater judicial oversight,
• Reduce the reliance on intrusive bail conditions,
• Improve legal aid access for those contesting bail decisions[24].

The COVID-19 pandemic added further urgency to the debate, as pre-trial detention conditions posed heightened health risks. This led to judicial guidance encouraging greater use of bail over remand where appropriate[25].

5. Comparative Analysis

India, the United States, and the United Kingdom each approach bail differently, reflecting their legal traditions and human rights commitments:

• India emphasizes the presumption of bail but faces challenges due to overuse of preventive detention and slow judicial processes, often leading to prolonged pretrial incarceration.
• The United States heavily relies on a cash bail system, which disproportionately affects poor and minority communities. Though constitutional protections exist, reform is ongoing to address systemic inequalities.
• The United Kingdom follows a rights-based model under the Bail Act 1976 and ECHR, focusing on conditional bail rather than monetary bonds, with better safeguards against arbitrary detention.

In sum, the UK offers a more balanced, human rights-oriented approach, while India and the US struggle with issues of consistency, inequality, and over-incarceration.

6. Human Rights Implications of Bail Systems

The right to liberty and the presumption of innocence are universally recognized principles in criminal justice, enshrined in both international human rights instruments and national constitutions. However, the application of bail laws in India, the United States, and the United Kingdom reveals varying degrees of compliance with these principles, often leading to significant human rights concerns.

6.1. Presumption of Innocence and Arbitrary Detention

All three jurisdictions recognize the presumption of innocence, a core component of the right to a fair trial under Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR)[26]. However, in practice, pretrial detention often undermines this right:

• In India, long pretrial detentions, especially under special laws like the Unlawful Activities (Prevention) Act (UAPA), have led to individuals being jailed for years without conviction[27]. This contradicts both Article 21 of the Indian Constitution (protection of life and personal liberty) and international standards.
• In the U.S., the reliance on cash bail results in the detention of thousands of individuals solely due to inability to pay. This disproportionately affects low-income and minority populations and has been criticized as a violation of the 14th Amendment’s Equal Protection Clause and Eighth Amendment’s prohibition on excessive bail[28].
• The UK upholds the presumption of bail under the Bail Act 1976, but overuse of conditional bail and extended pre-charge bail periods—especially following recent reforms—have raised concerns about potential constructive detention[29].

6.2. Equality Before the Law

Human rights law mandates equal access to justice, as emphasized in Article 7 of the Universal Declaration of Human Rights (UDHR)[30]. However, socio-economic disparities deeply influence bail decisions:

• In the U.S., inability to pay bail results in continued detention, which has been described by Human Rights Watch as creating a “two-tiered justice system” where freedom depends on wealth[31].
• In India, marginalized groups—including Dalits, Adivasis, and Muslims—are overrepresented in the under trial population, reflecting systemic bias and inequality in access to bail[32].
• The UK’s conditional bail regime is comparatively more equitable, but studies show that Black and minority ethnic (BAME) defendants are still more likely to be denied bail or face stricter conditions than their white counterparts[33].

6.3. Right to a Fair and Prompt Trial

Article 9(3) of the ICCPR requires that anyone detained on a criminal charge be tried within a reasonable time or released pending trial[34]. In all three jurisdictions, delays in the criminal justice system contribute to prolonged pretrial detention:

• In India, a vast number of under trials are incarcerated for periods exceeding the likely sentence if convicted. The Supreme Court has repeatedly emphasized that “bail is the rule and jail the exception,” yet implementation remains inconsistent[35].
• In the U.S., the backlog of cases—especially in state courts—results in lengthy detentions even for minor offenses, sometimes compelling defendants to plead guilty just to gain release[36].
• The UK has more robust safeguards to prevent undue delay, and courts are required to actively manage case timelines, but concerns persist with complex terrorism or sexual offense cases extending bail conditions over many months[37].

 

 

6.4. Impact on Vulnerable Groups

Human rights law also obliges states to take special care of vulnerable populations, including children, women, and those with mental illness:

• In India, women and juveniles often face significant hurdles in securing bail, especially in rural areas where legal aid is limited[38].
• In the U.S., juvenile defendants and those with mental health conditions are frequently detained in inappropriate facilities due to lack of alternatives or treatment services[39].
• The UK explicitly incorporates protections for children under the Children and Young Persons Act 1933, and courts must consider the best interests of the child in line with the UN Convention on the Rights of the Child[40].

6.5. International Scrutiny and Recommendations

International human rights bodies have repeatedly called for bail reform:

• The UN Human Rights Committee has criticized India for its excessive use of pretrial detention and delays in legal proceedings[41].
• The Inter-American Commission on Human Rights and UN Special Rapporteurs have urged the U.S. to abolish or significantly limit cash bail[42].
• The European Court of Human Rights (ECHR) has held in numerous judgments that extended pretrial detention must be justified by compelling reasons, a standard binding on the UK as a member of the European Convention on Human Rights[43].

   8. Conclusion

• Bail serves as a vital mechanism to uphold the fundamental right to liberty while ensuring the proper functioning of the criminal justice system. A comparative analysis of India, the United States, and the United Kingdom reveals both shared challenges and distinct legal approaches in balancing individual rights with public and judicial interests.
• In India, although bail is considered a right under Article 21 of the Constitution, in practice, systemic delays, overuse of preventive detention, and judicial inconsistencies often undermine access to bail—particularly for the poor and marginalized. Legal reform is urgently needed to shift from incarceration as the norm to liberty as the default.
• The United States, while constitutionally committed to fairness, struggles with a deeply entrenched cash bail system that disproportionately penalizes the economically disadvantaged. Ongoing reform efforts at the state level show promise, but federal action and a shift away from wealth-based detention remain necessary to align with human rights principles.
• The United Kingdom demonstrates a comparatively balanced approach, with strong procedural safeguards under the Bail Act 1976 and the Human Rights Act 1998. However, the use of extended conditional or pre-charge bail and racial disparities in bail decisions indicate that further reforms and oversight are still required.
• Across all three jurisdictions, the human rights implications of bail—particularly concerning equality before the law, the presumption of innocence, and protection against arbitrary detention—remain pressing concerns. Meaningful reform must prioritize judicial accountability, eliminate economic and social biases, and enhance procedural transparency.
• Ultimately, the right to bail must not be viewed merely as a procedural formality, but as an essential protection of human dignity and due process. Ensuring that bail systems are fair, equitable, and rights-respecting is not only a legal obligation but a moral imperative for any democratic society committed to justice.

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[1] Authored by Rinkey pursuing Ph.D from BPS, Khanpur

[2] Criminal Procedure Code, 1973, Sections 437, 438, 439.

[3] Unlawful Activities (Prevention) Act, 1967.

[4] Kartar Singh v. State of Punjab, (1994) 3 SCC 569.

[5] National Crime Records Bureau, “Prison Statistics India”, 2020.

[6] Jagtar Singh Johal Case, 2017,

[7] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[8] U.S. Constitution, Eighth Amendment.

[9] Bail Reform Act of 1984, 18 U.S.C. § 3142.

[10] Kalief Browder Case, 2010,

[11] New Jersey Bail Reform, 2017,

[12] California Supreme Court Ruling on Bail, 2018

[13] Human Rights Watch Report, 2018

[14] Bail Act 1976, c. 63, §§ 4–9

[15] R v. Crown Court at Lewes, ex parte Hill [1979] 1 All ER 799.

[16] Ministry of Justice, Bail and Remand Guidance, 2021

[17] Fair Trials International, The Use of Pre-Trial Detention in the UK, 2017; Howard League for Penal Reform, Remand and Children, 2019

[18] Police and Crime Act 2017, Part 4.

[19] Liberty, Briefing on the Police, Crime, Sentencing and Courts Act, 2022.

[20] United Nations, Convention on the Rights of the Child, Article 37.

[21] R (on the application of K) v. Parole Board [2003] EWCA Civ 1361.

[22] Human Rights Act 1998, c. 42; European Convention on Human Rights, Articles 5 and 6.

[23] Letellier v. France, App. No. 12369/86, ECHR 1991.

[24] JUSTICE, A Presumption of Bail: Reforming Pre-Trial Detention in the UK, 2020

[25] Senior Presiding Judge for England and Wales, COVID-19 Custody Protocol, 2020

[26] International Covenant on Civil and Political Rights (ICCPR), Art. 14(2).

[27] Amnesty International India, Justice Under Trial: A Study of Pre-trial Detention in India, 2017

[28] Human Rights Watch, The Price of Freedom: Bail and Pretrial Detention in the United States, 2010

[29] JUSTICE, Reforming Pre-Charge Bail, 2020.

[30] Universal Declaration of Human Rights (UDHR), Art. 7

[31] Human Rights Watch, supra note 3.

[32] National Crime Records Bureau (India), Prison Statistics India, 2021.

[33] Lammy Review, UK Ministry of Justice, 2017.

[34] ICCPR, Art. 9(3).

[35] Hussainara Khatoon v. Home Secretary, State of Bihar (1979) AIR 1369 (SC).

[36] National Legal Aid & Defender Association, Pretrial Detention and Case Backlogs in U.S. Courts, 2022.

[37] Crown Prosecution Service (UK), Bail Guidelines and Time Limits, 2021.

[38] Centre for Social Justice, Barriers to Bail: Women and the Indian Justice System, 2020.

[39] National Juvenile Defender Center, Locked Up and Locked Out, 2018.

[40] UNCRC, Art. 3; Children and Young Persons Act 1933 (UK), s.44.

[41] UN Human Rights Committee, Concluding Observations on the Fourth Periodic Report of India, 2014.

[42] Inter-American Commission on Human Rights, Report on Measures to Reduce Pretrial Detention in the U.S., 2016.

[43] Letellier v. France, ECHR App. No. 12369/86 (1991); McKay v. UK, App. No. 543/03 (2006).

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[1] Authored by Rinkey pursuing Ph.D from BPS, Khanpur