Our bail system has been turned upside down. Magistrates who grant bail face scrutiny, transfer and whispered allegations of corruption. Those who deny bail - even when the law clearly mandates it - face nothing. Not even a cursory review.

Former Chief Justice of India DY Chandrachud said it plainly at the Jaipur Literature Festival last week. Judges fear that granting bail will invite questions about their motives. So they take the safer route: deny bail and let higher courts deal with it. The result? 70,000 bail applications reach the Supreme Court every year. Justice Chandrachud said that he himself disposed of 24,000 bail applications during his tenure. These are matters that should never have left the magistrate's court.

Meanwhile, three-quarters of India's prison population consists of people who haven't been convicted of anything.

Father Stan Swamy was 84 years old and suffering from Parkinson's disease, when he died in judicial custody in July 2021. He had been waiting for bail for 9 months. The magistrate who denied him bail suffered no consequences. There was no review of that decision. No inquiry into whether an octogenarian priest with a degenerative neurological condition really posed such a danger that he couldn't be released.

Journalist Siddique Kappan spent 846 days in custody before he was finally granted bail. Those days are gone; he will not get them back.

Umar Khalid has been in Tihar Jail for over five years without trial. When the Supreme Court recently denied his bail, Justice Chandrachud felt compelled to publicly disagree, noting that prolonged detention without trial is punishment without conviction.

In June 2024, a vacation judge in Delhi did something remarkable: she actually applied the law. She granted bail to Chief Minister Arvind Kejriwal, citing established legal principles and even referencing the Chief Justice's own speeches encouraging lower courts to grant bail when appropriate. Within 24 hours, before the Enforcement Directorate had even received a complete copy of the order, the High Court stayed it. Every trial judge in the country received the message loud and clear.

This pattern repeats itself hundreds of times. A magistrate denies bail, often without properly examining whether the statutory grounds exist. The accused languishes in custody for months, sometimes years. Eventually, the matter reaches the High Court or the Supreme Court, which grants bail, often within minutes once the case is properly heard. And the original magistrate's order? Never questioned. Never reviewed. Never even examined for legal soundness.

The system has created a perverse incentive: denying bail carries no institutional risk, while granting it carries significant personal risk. Some magistrates have found a third option - simply adjourn the matter indefinitely. Umar Khalid's bail application was listed more than 10 times before he withdrew it in frustration. The Supreme Court never substantively heard it.

In 1979, Hussainara Khatoon's case revealed that Bihar's prisons were full of undertrials who had spent longer in custody than the maximum sentence for their alleged offences. The Supreme Court ordered their immediate release, establishing that prolonged pre-trial detention violates Article 21. That was 46 years ago. We are still fighting the same battle.

The Constitution presumes innocence. Supreme Court precedent from Gudikanti Narasimhulu to Satender Kumar Antil consistently holds that bail is the rule and jail is the exception. On the ground, we have completely inverted this.

We need an automatic review of bail denials. When a magistrate denies bail to someone who has been in custody for 60 or 90 days on charges carrying less than 7 years imprisonment, that order should go automatically to the district judge. Not as an appeal, but as a mandatory review.

High Courts should audit bail denial patterns quarterly. Not to punish magistrates, but to identify where constitutional principles are being consistently ignored. When magistrates show patterns of denying bail in cases that clearly warrant it, they need training and guidance - and institutional support - for making legally sound decisions that may be unpopular.

We need fast-track bail benches that ensure no bail matter languishes for more than a week. And most importantly, we need to protect magistrates who follow the law. When a magistrate grants bail based on sound legal reasoning and established precedent, the institution must defend that decision.

Right now, we do the opposite. We review and question bail grants. We should be reviewing and questioning bail denials.

Your Lordship, the Prime Minister has spoken publicly about the undertrial crisis. Justice Chandrachud has identified the structural problems. Civil society has documented the human cost. The numbers are stark: 70,000 bail applications annually at the Supreme Court, 5.5 lakh undertrials in our prisons, 76% of our prison population unconvicted.

This requires institutional intervention. A committee to study bail denial patterns. Guidelines making review of denials mandatory, not optional. High Court oversight of patterns of undertrial custody. Protection for judicial officers who apply constitutional principles even when it's inconvenient.

Most urgently, it requires changing the institutional culture that makes denying bail the safe option and granting it the risky one.

Father Stan Swamy is dead. Siddique Kappan's 846 days are gone forever. Umar Khalid has spent 5 years waiting for a trial. Behind these names are hundreds of thousands of others - poorer, less educated, without access to senior counsel - who have spent months or years in custody for want of bail that should have been granted as a matter of course.

We have created a system in which following the Constitution is dangerous, while violating it is safe. Where the process has become the punishment. Where justice delayed isn't just justice denied; it's liberty denied, often to people who will eventually be acquitted.

Chief Justice Kant, you have the opportunity to correct this. To ensure that magistrates are held accountable for denying bail unlawfully, not for granting it lawfully. To make constitutional principles an operational reality, not just a rhetorical flourish.

The undertrial crisis will not resolve itself. It requires deliberate institutional reform. But the essential principle is simple: we must review what we're getting wrong, not punish people for getting it right.

Dr Ajay Kummar Pandey is an Advocate at the Supreme Court of India.

Views are personal.