Explained: The bail law and Supreme Court call for reform

Source: The post is based on the article “Explained: The bail law and Supreme Court call for reform” published in the Indian Express on 13^th July 2022.

What is the News?

Recently, the Supreme Court underlined that “there is a pressing need” for reform in the law related to bail and called on the government to consider framing special legislation on the lines of the law in the United Kingdom.

What is the law on bail in India?

The Code of Criminal Procedure (CrPC) does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.

The CrPC empowers magistrates to grant bail for bailable offences as a matter of right. This would involve release on furnishing a bail bond, without or without security.

For non-bailable offences which enable the police officer to arrest without a warrant, a magistrate would determine if the accused is fit to be released on bail.

What is the UK law on bail?

The Bail Act of the United Kingdom, 1976, prescribes the procedure for granting bail. A key feature is that one of the aims of the legislation is “reducing the size of the inmate population”. The law also has provisions for ensuring legal aid for defendants.

For rejecting bail, the prosecution must show that grounds exist for believing the defendant on bail would not surrender to custody, would commit an offence while on bail, or would interfere with witnesses or otherwise.

About the ruling of SC on bail reforms

The Bench issued certain clarifications to an older judgment delivered in July 2021 on bail reform (Satender Kumar Antil vs CBI).

Need for separate law: The court observed the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset. The court underlined that the CrPC, despite amendments since Independence, largely retains its original structure as drafted by a colonial power over its subjects.

The court said, “Persons accused with same offense shall never be treated differently either by the same court or by the same or different courts. Such an action….would be a grave affront to Articles 14 and 15 of the Constitution”

Hence, the court demanded a separate law that deals with the grant of bail.

On bail application: Section 88, 170, 204 and 209 of the Code relates to various stages of a trial where a magistrate can decide on the release of an accused. The court held that magistrates must routinely consider granting bail, without insisting on a separate bail application.

On arrests: The court noted that the culture of too many arrests, especially for non-cognisable offences, is unwarranted. It emphasised that even for cognisable offences, the arrest is not mandatory and must be “necessitated”.

The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.