Reform bail law, but make the right diagnosis first

Source: This post is based on the article “Reform bail law, but make the right diagnosis first” published in The Hindu on 26th July 2022.

Syllabus: GS 2 – Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

Relevance: About the bail reforms in India.

News: Over 75% of India’s prison population are undertrial while overcrowding in Indian prisons stands at 118%. The Supreme Court of India in the Satender Kumar Antil vs CBI case, acknowledged the ineffectiveness of India’s bail system and its contribution to the above crisis.

What is the significance of the court ruling?

What is the procedure to get bail?

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.

These guidelines stress the need to release applicants. Despite existing guidelines, courts do not usually record reasons for rejecting bail.

What are the challenges in bail compliance?

Marginalised sections are either denied bail or granted bail with onerous conditions. Some common conditions are the nature of 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. Hence, more undertrial prisoners are languishing in jails.

The other factors are a) lack of residence and identity proof, b) abandonment by family and c) limitations in navigating the court system. These also undermine an undertrial’s ability to comply with bail conditions.

What should be done to reform the bail system comprehensively?

The bail system presumes that the risk of financial loss is necessary to ensure the presence of the accused in court. Such assumptions have the effect of rendering the rule of ‘bail not jail’ meaningless for a significant proportion of undertrial persons.

A careful re-evaluation of the presumptions is imperative. An effective bail law must be based on the correlation of the following,

a) Proportion of undertrials applying for bail, b) Proportion of bail applications accepted or rejected, c) The amount of bail compliance and the amount of denial of bail, d) demographics of undertrials, e) category of offences and timelines for bail, f) address socio-economic and structural barriers and g) effective enforcement of safeguards against arbitrary arrest that would eliminate the need to seek bail from courts.