In a constitutional democracy, an accused person is presumed innocent until proven guilty. Bail, therefore, is not supposed to be a reward for the influential or a favour extended to those who can afford an expensive lawyer. Yet the reality of India’s criminal justice system raises an uncomfortable question: has liberty itself become unequal?

The problem is not merely about who gets bail and who does not. It is about whether money, social status, political influence, the ability to hire senior lawyers and the capacity to produce sureties determine who walks out of prison and who remains behind bars for years awaiting trial.

India’s undertrial population makes this inequality impossible to ignore. According to the National Crime Records Bureau’s 2023 prison data, more than 73 per cent of the country’s prisoners were undertrials. In other words, the majority had not been convicted when they were being deprived of their liberty. A criminal justice system in which the punishment often begins before conviction deserves serious constitutional scrutiny.

The Supreme Court recognised this danger more than four decades ago in Hussainara Khatoon v. State of Bihar. The case exposed the shocking reality of people remaining in prison for years for offences that, even if proved, could have attracted sentences shorter than the period they had already spent in custody. The Court held that prolonged detention without trial could not be reconciled with the requirement of a “reasonable, just and fair” procedure under Article 21. It also recognised the importance of releasing poor undertrials on personal bonds rather than allowing poverty to become a reason for continued imprisonment.

The Court has repeatedly had to remind the criminal justice system of the same principle. In Arnesh Kumar v. State of Bihar, it warned against unnecessary arrests and made it clear that arrest cannot be treated as the automatic first step whenever an offence is alleged. Police officers must ask a basic question before making an arrest: is it really necessary?

In Satender Kumar Antil v. CBI, the Supreme Court went further, stressing that prolonged incarceration and delay in trial cannot be allowed to defeat personal liberty. The Court has also made it clear that imposing a bail condition which is impossible for an accused to fulfil defeats the very purpose of granting bail.

This is where the class dimension becomes impossible to ignore. A wealthy accused can immediately engage an experienced criminal lawyer, arrange property documents, produce financially secure sureties and challenge an adverse order in higher courts. A poor prisoner may struggle even to understand the legal process, obtain legal aid or find someone willing to stand surety. A right that depends on one’s ability to pay is not fully a right.

The Supreme Court’s recent interventions show that the problem remains unresolved. In 2026, the Court itself observed that the application of prolonged-incarceration principles in bail matters has not been uniform and that similarly placed prisoners can receive different outcomes depending on the approach of different Benches. In another 2026 judgment, the Court reaffirmed that constitutional courts can intervene where prolonged incarceration and delayed trial threaten Article 21, even in cases involving stringent special laws.

The answer is not to grant bail indiscriminately. Courts must consider the seriousness of the alleged offence, the possibility of flight, the danger of tampering with evidence and the likelihood of influencing witnesses. But these criteria must be applied consistently, transparently and without allowing wealth or influence to become an invisible advantage.

The deeper problem also lies beyond the courtroom: slow investigations, inadequate judicial capacity, delayed trials, weak legal-aid mechanisms and excessive bail conditions all contribute to unnecessary incarceration. Even after bail is granted, some prisoners remain behind bars because they cannot complete the formalities. That is not liberty in any meaningful sense.

The country needs an independent, data-driven study by institutions such as NALSAR or other leading law universities to examine who gets bail, who remains incarcerated, for how long, under what laws and under what socio-economic conditions. Such research could reveal whether the promise of equal justice is actually reaching the prison gates.

Justice cannot mean one standard for the powerful and another for the powerless. If a person spends years in prison and is eventually acquitted, no court can return thos