1979. The Year when the Supreme Court of India was confronted with a disturbing reality. It was regarding the thousands of undertrial prisoners languishing in the Bihar jails for years, some even for periods longer than the maximum punishment prescribed for the alleged offences. The catch is, they weren’t convicted. They were simply too poor to secure bail or legal representation.

This became the landmark case of Hussainara Khatoon v State of Bihar (AIR 1979 SC 1369), where the court famously declared that the Right to Speedy Trial is a fundamental right under Article 21 of the Indian Constitution.

Now, nearly five decades later, the laws have changed. The procedures have changed. The Codes themselves have changed from the Indian Penal Code and the Criminal Procedure Code to Bharatiya Nyaya Sanhitha, 2023 and Bharatiya Nagarik Suraksha Sanhitha, 2023 (hereinafter referred to as BNS and BNSS, respectively).

Yet, the question remains unchanged.

Has the law become equal?

The Promise of Equality in the Digital Courtroom

The enactment of the New Criminal Acts in 2024 marked a significant overhaul in the Indian Legal System, with one of its most ambitious features being the push towards digitalization which included video-recorded searches, electronic trials and online proceedings. Section 530 of the BNSS allows courts to conduct their proceedings in electronic mode. In theory, this is a direct response to the constitutional mandate articulated in Hussainara Khatoon v. State of Bihar, ie, to ensure that justice is not delayed.

By 2025, the narrative around equality before the law began to shift. The issue was no longer merely about access to courts. It was about access to technology.

On paper, digital trials appear neutral. A virtual hearing treats all litigants equally. Each appears in the same grid, before the same judge, governed by the same procedural rules. But in practice, a new form of inequality has emerged: the digital divide.

Wealthy litigants and corporations quickly adapted. They deployed specialised legal teams capable of scrutinising electronic evidence, questioning metadata integrity, challenging hash values, and disputing chain-of-custody records. Digitalisation, for them, became a tool of precision advocacy. For economically weaker accused persons, particularly in rural regions, the experience has been starkly different. Reports emerging from states like Bihar and Chhattisgarh through 2025 indicate frequent disruptions in video hearings, lack of access to stable internet in prisons, and limited technical infrastructure at police stations. In some cases, evidentiary records have been rendered unusable because of improper digital storage or corruption.

The result is paradoxical. A system designed to accelerate justice risks excluding those who lack the means to participate effectively in it.

The constitutional promise of Article 21 has not been denied, but it has been redefined. Speedy justice now depends not just on judicial efficiency but also on bandwidth, infrastructure, and digital literacy.

This raises a critical question:

Does a digital courtroom bridge the gap of equality or does it create a new “bandwidth barrier” to justice?

Bail, Liberty, and the ‘One-Third Rule’

The principle that “bail is the rule and jail is the exception” was firmly established in the case of State of Rajasthan v. Balchand (AIR 1977 SC 2447). However, the lived reality of India’s prison system has long contradicted this ideal.

Under the Criminal Procedure Code, Section 436A allowed for the release of undertrial prisoners who had served half of the maximum sentence. The BNSS introduced a significant reform through Section 479, reducing this threshold to one-third for first-time offenders.

By 2026, this provision will have become central to debates on equality before the law.

On its face, Section 479 represents a transformative step. It directly addresses the undertrial crisis, one of the most persistent failures of the criminal justice system since Hussainara Khatoon v. State of Bihar. It acknowledges that prolonged pre-trial detention is itself a form of injustice.

But the implementation tells a more complex story.

Early data and court observations in 2026 indicate that the effectiveness of Section 479 is heavily dependent on administrative efficiency. The law mandates release once the one-third threshold is met. However, identifying eligible prisoners requires accurate records, timely calculations, and proactive legal intervention.

This is where inequality resurfaces.

Well-represented accused have their eligibility assessed immediately. Their legal teams track detention periods, file applications, and ensure compliance with the provision. For them, the “one-third rule” operates as intended.

For indigent prisoners, the reality is much different. Overburdened prison administrations and under-resourced legal aid systems often fail to identify eligible cases in time. Delays in updating digital prison records, particularly under the evolving e-Prison system, further compound the problem.

As a result, individuals who are legally entitled to release continue to remain in custody not because the law denies them liberty, but because the system fails to operationalise it.

The inequality, therefore, is not in the text of Section 479. It is in its execution.

Hence, in the current time, a troubling pattern emerges: the law has reduced the ‘price’ of freedom, but access to that freedom still depends on one’s ability to navigate the system.

Equality in Law v Equality in Experience

The Indian Constitution guarantees equality before the law. But the cases and developments discussed above reveal a deeper truth: equality in law does not automatically translate into equality in experience.

Legal systems operate through institutions such as courts, police, prisons, and legal aid bodies. Each of these institutions functions within broader social and economic realities.

This is evident not only in bail and trial procedures but across the spectrum of criminal justice. Access to competent legal representation, awareness of rights, and the ability to engage with procedural mechanisms significantly influence outcomes.

The judiciary has repeatedly attempted to bridge this gap. From recognising speedy trial rights in Hussainara Khatoon v. State of Bihar to reinforcing bail principles in State of Rajasthan v. Balchand, constitutional courts have expanded the scope of fairness.

Yet, systemic challenges persist.

The transition from the CrPC to the BNSS represents an effort to modernise and rationalise criminal procedure. But as the recent experience shows, reform in law must be accompanied by reform in infrastructure, administration, and accessibility.

Otherwise, inequality does not disappear. It evolves.

Conclusion: Same Clock, Different Speed

As of 2026, India’s criminal justice system is no longer what it was in 1979. It is faster, more digitised, and procedurally more progressive. The Bharatiya Nagarik Suraksha Sanhita has introduced mechanisms that, in theory, can significantly reduce delays and undertrial incarceration.

And yet, the shadow of Hussainara Khatoon v. State of Bihar still lingers.

The law has moved from paper to pixels. It has moved from ‘one-half’ to ‘one-third.’ It has embraced technology and reformed procedure. But the fundamental question remains unresolved.

Is the law equal in its promise or equal in its impact?

Because equality before the law is not merely about identical rules. It is about whether those rules operate with equal force across different realities.

A digital trial means little without digital access. A reduced detention threshold means little without administrative implementation. A constitutional guarantee means little without institutional capacity.

Justice, in the end, is not measured by the words of the statute but by the lives it touches.

And so, the question that began in a Bihar courtroom in 1979 continues to echo in 2026:

Is the clock of justice ticking at the same speed for everyone, or only for those who can afford to hear it?

REFERENCES:

• The Indian Constitution
• Bharatiya Nagarik Suraksha Sanhitha
• Hussainara Khatoon v. State of Bihar: https://www.nayalegal.com
• State of Rajasthan v. Balchand: https://indiankanoon.org
• Justice System in Crisis: The Case of India’s Undertrial Prisoners by Niranjan Sahoo: https://www.orfonline.org
• Is Justice Delayed, Justice Denied - Analysing the Constitutionality and the Right to Speedy Trial by Hemant Bohra: https://www.cnlu.ac.in
• Virtual Courts Infrastructure under BNSS - Access to Justice v Digital Exclusion by Tilak Vipul Mistry: https://ijlr.iledu.in
• Delay in Process, Denial of Justice: The Jurisprudence and Empirics of Speedy Trials in Comparative Perspective by Jayanth K Krishnan and C. Raj Kumar: https://ghconline.gov.in

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