How To End The Jail Mania? – On Bail system of India

Source: The post is based on an article “How to end the jail mania?” published in The Times of India on 22nd July 2022. 

Syllabus: GS 2 Important Provisions of the Constitution of India 

Relevance: Fundamental Rights 

News; Recently, questions have been raised by the Chief Justice of India and the Supreme Court on the status of the criminal justice system (CJS). The Chief Justice of India used the expression “Process (of Criminal justice system) is punishment” to describe the state of the present system. 

What are the issues that are highlighted in the Criminal Justice System of India? 

First, the SC judgment emphasized that there are three fundamental presuppositions of a criminal trial India criminal justice system, 1) presumption of innocence; 2) jail being an exception; and 3) the sanctity of personal liberty.  

However, arbitrary arrests and denial of bail to the accused have become normal. The above fundamentals are being ignored. 

Second, there are 25 central and state preventive detention laws that seek to control everyday crime. Under these laws, a person can be detained on mere suspicion and never be put to trial. For example, in 2020, around 89,405 persons were detained under preventive detention laws. 

In India, offences relating to terror, drugs, sexual abuse against children are all subjected to strict bail restrictions and presumption of guilt. 

Third, SC stated that arbitrary arrests and denial of bail are the hallmarks of a police state. In 2020, around 70 lakhs people were preventively arrested under various provisions of the CrPC. Further, these included thousands of arrests under provisions that do not even provide for arrest.  

Fourth, Section 437 of the CrPC, which deals with bail, restricts bail in offences punishable with death and life imprisonment. This leaves unfettered discretion in the hands of every judge who hears a bail case. 

Therefore, there is an unpredictable application of bail provision by our courts. Further, there are conspicuous inconsistencies in who gets bail, who does not, and at what stage of the trial the bail is granted. 

What are the suggestions of Supreme Court? 

All the investigative agencies must follow the procedure for arrest as laid down under the Code of Criminal Procedure (CrPC).  

The court called arrest, a “draconian measure” that must be used “sparingly”.  

It also recommended the enactment of a “Bail Act”, a special law to streamline the process of granting bail. 

What are the foundational principles of criminal law that should be followed in the special bail act? 

(1) Bail must be recognised as a general right. 

(2) Bail can be rejected only if the court finds substantial grounds to believe that the accused will fail to surrender, commit an offence, or interfere with witnesses if released on bail. 

(3) Bail is not to be denied as a form of punishment.  

How can the court’s suggestion pave the way for reform? 

The bail act might help address the inadequacies of the current bail system. 

The bail law will ensure that the criminal process will remain sacrosanct and would no longer be felt as the punishment.   

There should be a provision for the Annual Confidential Reports of judges who routinely deny bail to be subject to strict scrutiny.