Context: 

This Article is based on the news “Reform bail law, but make the right diagnosis first” which was published in the Hindu. Lawyers from the Fair Trial Programme, an undertrial legal aid initiative, at National Law University Delhi highlight the issues persisting with Bail laws in India.

Need For Reforming Bail Laws In India: Supreme Court

• Apex Court Acknowledment: The Supreme Court of India recently acknowledged, in Satender Kumar Antil vs CBI, the ineffectiveness of India’s bail system and its contribution to this crisis.
• Apex Court Observation: The court noted that despite repeated guidelines on bail law, things have not changed much on the ground.

Bail Provisions in India: Sections, and Types 

• What is Bail: 

  • It is the temporary and conditional release of a defendant with the promise to appear in court when required.

• Accompanied by: 

  • A security deposit to secure the release of the accused.

• Types of Bail in India: 

  • There are three types of Bail in India

    • Regular Bail

      • A regular bail is simply the release of an accused from jail to ensure his attendance at the trial.
      • Section 437 and 439 of the CrPC: The accused has the right to be freed from such confinement under section 437 and section 439 of the CrPC.

    • Interim Bail

      • It is issued for a short period. Interim bail is granted to an accused before the hearing for regular or anticipatory bail.

    • Anticipatory Bail

      • Advance Bail: It is similar to obtaining advance bail under Section 438 of the CrPC.
      • Section 438: A bail under Section 438 may be bail before arrest, and an individual cannot be arrested by the police if the court has granted anticipatory bail.
      • Application: In recent years, this has become an important problem because corporate competitors and other prominent persons sometimes seek to frame their opponents with fake charges.

Cases in Bailable and Non Bailable Offences

• Bailable Offence: 

  • Section 2 (a) of CrPC 1973 defines bailable offence which has the following characteristics.
    • Bailable offences are considered less serious.
    • As a general rule bailable offence are those in which punishment is less than 3 years or fine or both.
    • In a bailable offence, bail can be claimed as a right.
    • The right of bail is under Section 436 of CrPC.
    • Any Magistrate is empowered to try the cases of bailable offences.

• Bail For Non Bailable Offence:

• • A Non Bailable Offence is one in which bail cannot be granted as a matter of right unless ordered by a competent court which will have the following characteristics
    • Non Bailable Offences are considered more serious.
    • Imprisonment of more than 3 years and fine which may extend to life imprisonment and even death.
    • Bail can’t be claimed as right and the court or the police officer has the discretion to grant bail after considering facts and circumstances as per each case.
    • Provisions of Non Bailable Offences are given in section 437 of CrPC.
    • In case of Non Bailable Offences an anticipatory bail under CrPC can be granted by the court of Session or by the High Court.
    • In such instances, the accused may seek bail under Sections 437 and Section 439 of the CrPC 1973.

Issues With the Bail Laws in India

• Overrepresentation of Undertrails: 

  • Untertrails comprise over 75% of India’s prison population which strongly reflects the systematic inefficiencies in the bail system, further overcrowding in Indian prisons stands at 118%.

• Challenges with the Disadvantage Section of Society: 

  • Arbitrary arrest is vague and it is based on the discretion of the Police. Such vague justifications put migrants, persons without assets, or those with no contact with family at higher risk of arrest because of their socio-economic condition. 
    • Data from the Fair Trial Program in Yerwada and Nagpur central prisons mentions that 18.50% of undertrials are migrants, 93.48% did not own any assets, 62.22% did not have any contact with family, and 10% had a history of previous incarceration.

• Reluctance in the Judicial System: 

  • A growing reluctance among trial judges to grant bail has become a major reason behind increasing bail backlogs.
    • Discretion of Courts: While the law categorizes offenses as bailable or non-bailable, there is still judicial discretion in granting bail for non-bailable offenses. Concerns exist that trial courts are hesitant to grant bail, especially in sensitive cases, leading to overcrowding in jails. 

• Challenge in Bail Compliance: 

  • A large number of undertrials continue to remain in prison despite being granted bail due to challenges in complying with bail conditions.
    • Lack of Means to Arrange Money/Property: To comply with bail conditions, the undertrial needs to arrange money/property and local sureties as a promise to appear in courts when required.
    • Lack of Residence and Identity Proof: An innocent person awaiting trial can end up spending years in jail simply because they can’t afford bail. According to Data from the Fair Trial Programme (FTP) in Yerwada and Nagpur Central jails:
      • In 14% of cases: Undertrials were unable to comply with bail conditions and remained in prison despite being granted bail.
      • In 35% of cases: It took over a month after obtaining the bail for undertrials to comply with bail conditions and secure their release.

• Flawed Assumptions: 

• • Fair Trail Program criticizes the Indian bail system for relying on flawed assumptions
    • Assumption 1: Every arrested person is propertied or has access to prophesied social connections. This ignores the socio-economic realities of a large portion of the population who might lack the financial resources to secure bail.
    • Assumption 2: Financial loss is the only way to ensure the presence of the accused in court. This overlooks alternative measures like robust witness protection programs or electronic monitoring systems.
  • Bail Not Jail: These assumptions, render the principle of “bail not jail” meaningless for many undertrial individuals who remain incarcerated simply because they lack the financial means to secure bail.

• Lack of Safeguard: 

  • The Supreme Court asserted that effective enforcement against arbitrary arrest would eliminate the need to seek bail from courts.

Way Ahead to Bail Laws In India

• Financial Alternatives: Exploring alternatives to cash bail, like unsecured bonds, community supervision programs, or allowing property deposits instead of cash.
• Need For a Separate Law for Bail: Currently CrPC governs the procedures for granting bail in India. It retains a structure inherited from the colonial era.
  • A separate law specifically focusing on granting bail in India should be made similar to the United Kingdom Act of 1976 which prescribes the procedure for granting bail.
• Addressing Trial Delays: Establishing fast-track courts for specific offenses to expedite trials and reduce pre-trial detention times. Utilizing technology for virtual hearings and case management to streamline the judicial process.
  • Judicial Training: Provide training to judges on the principles of “bail not jail” and fair application of bail discretion.
• Community Bail Programs: Exploring community-based bail programs where community organizations vouch for the accused and ensure their court appearances.
• Legal Aid: Strengthen legal aid programs to ensure everyone has access to legal representation during bail hearings. This can help navigate the legal complexities and present a compelling case for bail.
  • Directions to States: All the state governments and Union Territories have been directed by the Supreme Court to facilitate standing orders and avoid indiscriminate arrests.=