[Answered] Bail reform is necessary for ensuring the last mile delivery of justice. Discuss. Also, enumerate the Supreme Court’s guidelines in this regard.  

Over 75% of India’s prison population are undertrial while overcrowding in Indian prisons stands at 118%. The power to grant bail is largely based on the court’s discretion and depends on the facts of each case. The Supreme Court has many times laid down principles for guiding the exercise of such discretion by courts in deciding bail applications.

Need of bail reforms:

• The CrPC does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
• Despite existing guidelines, courts do not usually record reasons for rejecting bail. The rationale behind how courts factor in offence-based and person-based considerations in deciding bail applications remains unclear.
• The CrPC, despite amendments since Independence, largely retains its original structure as drafted by a colonial power over its subjects.
• The bail system has flawed assumptions that every arrested person will have access to propertied social connections.
• It presumes that the risk of financial loss is necessary to ensure the presence of the accused in court.

Hurdles of the last mile people in accessing bail:

• Marginalised sections are either denied bail or granted bail with difficult conditions such as the cash bonds, surety bonds, proof of property ownership and solvency.
• Lack of means to arrange for money/property and local sureties are the most significant reasons accounting for an undertrial’s inability to comply with bail conditions.
• The other factors are likelack of residence and identity proof, abandonment by family and limitations in navigating the court system, also undermine their ability to comply with bail conditions.

The Supreme Court of India recently acknowledged, in Satender Kumar Antil vs CBI, the ineffectiveness of India’s bail system. The Court provided comprehensive guidelines on laws related to bail.

• Need for separate law: The court observed the idea of indiscriminate arrests and ignoring the rule of “bail, not jail” is a colonial mindset.
• Persons accused with same offense shall never be treated differently either by the same court or by the same or different courts.
• Bail application: 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. It must be “necessitated” in specific circumstances like preventing the committing of any further offense.
• The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.

There is an urgent need for bail reform but it would be counterproductive to undertake a reform exercise without first developing the empirical basis to understand and diagnose the problem at hand.