The notion of bail is fundamental to the Indian criminal justice system, reflecting the balance between an accused person’s right to liberty and society’s interest in ensuring justice. Rooted in the principle of “presumption of innocence until proven guilty,” bail is not merely a legal provision but a reflection of the fundamental rights guaranteed under Article 21 of the Constitution of India. However, in practice, the system of granting bail in India has often revealed deep inconsistencies, arbitrary practices, and inequities that disproportionately affect underprivileged sections of society. This calls for an urgent revisit of India’s bail jurisprudence.
The Plight of Undertrials: A Systemic Failure
According to the National Crime Records Bureau (NCRB) data, over 70% of India’s prison population comprises undertrials. These are individuals who have not been convicted of any crime but remain incarcerated due to their inability to secure bail. The socio-economic divide becomes glaringly evident here—while affluent individuals often navigate the system with relative ease, those from marginalized communities find themselves trapped, unable to meet onerous bail conditions or access competent legal counsel.
One stark example of this inequity was highlighted in the Supreme Court’s judgment in Hussainara Khatoon vs. Home Secretary, State of Bihar (1979). This case brought to light the appalling conditions of undertrials in Bihar, many of whom had spent more time in prison than the maximum sentence for their alleged offences. The Court held that speedy justice is a fundamental right under Article 21. Yet, decades later, the ground reality remains largely unchanged, with prisons overcrowded and justice delayed for millions.
Disparities in High-Profile Cases:
The disparity in bail outcomes becomes even more evident in high-profile cases. For instance, in the case of Aryan Khan, a young individual faced prolonged incarceration despite the lack of substantial evidence. The media frenzy surrounding the case brought immense public scrutiny, yet the wheels of justice moved slowly. In contrast, individuals in other cases involving severe allegations have often been granted bail swiftly. These examples illustrate how media attention and other factors can skew the bail process, creating a perception of selective justice.
The Supreme Court’s Stance on Bail:
The judiciary has, over the years, recognised the pitfalls in the bail system and has sought to address them through landmark judgments:
- Sanjay Chandra vs. CBI (2011): This case revolved around Sanjay Chandra, accused in the 2G spectrum allocation scam, seeking bail after being arrested for alleged corruption and conspiracy. The Supreme Court granted bail, emphasising that bail is the rule and jail is the exception and that personal liberty under Article 21 must not be curtailed without sufficient justification. The Court held that bail cannot be denied solely based on the gravity of the offence unless there is a risk of the accused influencing witnesses, tampering with evidence, or evading trial. This judgment underscored the principle of presumption of innocence and highlighted that prolonged incarceration without trial violates fundamental rights, setting a precedent for balancing individual liberty with the demands of justice.
- Arnesh Kumar vs. State of Bihar (2014): In this case, the Supreme Court addressed the misuse of Section 498A IPC (cruelty to a woman by her husband or his relatives) and emphasised the need for procedural safeguards before arresting individuals in offences punishable with imprisonment of up to seven years. The Court ruled that arrests should not be made routinely or mechanically without assessing the necessity under Section 41 CrPC, and issued guidelines requiring police officers to justify arrests through a checklist and magistrates to ensure compliance before authorizing detention. This landmark judgment aimed to prevent arbitrary arrests and promote the use of alternatives, such as notices under Section 41A CrPC, ensuring a balance between protecting individual rights and addressing genuine grievances in matrimonial disputes.
- Satender Kumar Antil vs. CBI (2022): The Supreme Court reinforced the principle that bail is the rule and jail is the exception, addressing concerns over arbitrary arrests and delays in bail adjudication. The court categorised offences for streamlined bail consideration, criticised the misuse of arrest powers by investigating agencies, and directed adherence to guidelines laid down in Arnesh Kumar vs. State of Bihar (2014). It emphasised the need to safeguard personal liberty, avoid unnecessary pre-trial incarceration, and mandated the framing of Standard Operating Procedures (SOPs) for expediting bail applications. This judgment serves as a critical step toward ensuring a fair and efficient criminal justice system.
Despite these rulings, there is a significant gap between judicial pronouncements and their implementation. Lower courts often err on the side of caution, prioritizing incarceration over liberty, especially in politically sensitive or media-highlighted cases.
Challenges in the Current Bail System:
Several systemic challenges exacerbate the issues surrounding bail:
- Overburdened Judiciary: With an overwhelming backlog of cases, courts are often unable to conduct timely bail hearings, leading to prolonged detention of undertrials.
- Economic Barriers: For many accused individuals, the financial burden of meeting bail conditions, such as furnishing sureties or paying bonds, is insurmountable. This economic disparity creates an unequal playing field.
- Lack of Legal Awareness: Many undertrials remain unaware of their rights or the procedures for securing bail, leading to prolonged detention in cases where bail could have been granted.
- Judicial Discretion: The absence of standardised criteria for granting bail results in subjective decision-making.
The Need for Uniform Guidelines:
To address these challenges, it is imperative to establish a codified framework for granting bail. Such guidelines should:
- Define Clear Criteria: Bail decisions should be based on objective factors such as the nature and gravity of the offence, the accused’s prior criminal record, the likelihood of absconding, and the potential threat to victims or witnesses.
- Encourage Alternatives to Incarceration: For non-violent offenders or those accused of minor offences, alternatives like electronic monitoring or community service should be considered.
- Strengthen Legal Aid: The government must enhance access to competent legal representation for economically weaker sections to ensure that justice is not denied due to financial constraints.
- Implement Technological Solutions: Digitizing bail applications and hearings can expedite the process and reduce delays caused by logistical challenges.
Reforming the Bail Process: Lessons from Global Practices
India can draw inspiration from countries that have reformed their bail systems to reduce disparities. For instance:
- United States: Several states have abolished cash bail for non-violent offences, relying instead on risk assessment tools to determine pretrial detention.
- United Kingdom: The UK emphasises the presumption of bail and has implemented strict time limits for pretrial detention to prevent unnecessary incarceration.
- Canada: Canadian courts are mandated to consider all alternatives to detention before denying bail, ensuring that detention is truly a last resort.
A Call to Action:
Reforming India’s bail jurisprudence is not just a legal necessity but a moral imperative. The principles of justice, equality, and liberty demand a system where bail decisions are consistent, fair, and impartial. Policymakers, judicial authorities, and civil society must work collaboratively to address the systemic flaws that perpetuate inequity in the bail process.
As legal professionals and citizens, we must advocate for reforms that uphold the rule of law and restore public confidence in the justice system. A robust and equitable bail framework can pave the way for a more just society where the scales of justice are balanced, and the constitutional promise of liberty is upheld for all.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. The content may not reflect the most current legal developments and is not guaranteed to be accurate, complete, or up-to-date. Readers should consult a qualified legal professional before taking any action based on the information provided. The authors and publishers disclaim any liability for any loss or damage incurred as a result of reliance on this article. This article does not create an attorney-client relationship.