In June 2026, the Hon'ble Supreme Court of India issued notice on bail petitions filed by two undertrials who have been in custody for more than twelve years in connection with a case under the Unlawful Activities Prevention Act (UAPA). The Court directed the Delhi Police to file a counter affidavit and listed the matter for hearing — signalling its concern about prolonged pre-trial detention. While this case involves UAPA, the principles it invokes are relevant to all undertrial prisoners across India, including in Rajasthan.
The Problem of Prolonged Undertrial Detention
India has one of the largest undertrial prisoner populations in the world. A significant proportion of people in Indian jails are not convicted — they are awaiting trial. Many have been in custody for periods that exceed the maximum sentence for the offence they are alleged to have committed. This represents a profound failure of the criminal justice system and a serious violation of the right to liberty under Article 21 of the Constitution.
What the Law Says About Undertrial Bail
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — which replaced the CrPC — contains specific provisions addressing undertrial detention:
- Section 479 BNSS (formerly Section 436A CrPC) — an undertrial who has been in custody for half the maximum period of imprisonment for the alleged offence is entitled to bail, with certain exceptions
- This right applies even in serious cases — though for offences carrying the death penalty or life imprisonment, the court has discretion
- First-time offenders get additional protection — under the BNSS, first-time offenders who have completed one-third of the maximum sentence are entitled to bail
UAPA and Bail — The Difficult Terrain
The Unlawful Activities Prevention Act contains stringent bail provisions — Section 43D(5) of UAPA requires the court to be satisfied that there are reasonable grounds to believe that the accusation is prima facie true before granting bail. This effectively reverses the normal presumption in favour of bail. Courts have held that this creates a "twin test" that makes bail in UAPA cases extremely difficult — but not impossible.
The Supreme Court has previously held that prolonged incarceration — even in UAPA cases — can itself become a ground for bail, as continued detention without trial at some point crosses the line from lawful custody to a violation of fundamental rights.
What This Means Practically
If you have a family member who has been in custody as an undertrial for a prolonged period — whether in Rajasthan or elsewhere — the following steps are worth considering:
- Calculate whether the period of custody has reached half the maximum sentence for the alleged offence — if so, Section 479 BNSS may apply
- Check whether the trial is actually progressing or has stalled — delay in trial is increasingly being accepted as a ground for bail by higher courts
- For first-time offenders, the BNSS one-third threshold may provide a faster route to bail
- A fresh bail application can be filed before the Sessions Court or High Court even if earlier applications were rejected — changed circumstances, including prolonged custody, justify a fresh application