Bail Laws in India

Bail Laws in India

Context: This editorial is covered in context of an article ‘Reform bail law, but make the right diagnosis first’ covered recently in The Hindu.

What is Bail? What are its types?
• Bail is a judicial mechanism for the temporary release of an accused person from custody, on the condition that the accused person will appear in court at a later date. It’s a way to balance the right of an accused to
personal freedom and the public interest. The person who pays the money or undertakes a money bond acts as the surety.
• Regular Bail: Regular bail is granted to a person who has been arrested and detained. The accused has the right to be released from such custody under Section 437 and Section 439 of the CrPC35.
• Anticipatory Bail: This type of bail is granted in anticipation of arrest. It is a direction to release a person on bail, even before the person is arrested.
• Interim Bail: Interim bail is a temporary bail granted for a short period of time. It is granted either during the pendency of an application for regular or anticipatory bail.
• Default Bail: Also known as statutory bail, it is granted when the police fail to complete the investigation within a specified period.
• Medical Bail: This type of bail is granted on medical grounds when the accused is seriously ill.

What are issues with Bail Law in India?
• Overrepresentation of Undertrials: Undertrials comprise over 75% of India’s prison population, reflecting systematic inefficiencies in the bail system. This leads to overcrowding in prisons.
• Economic Disparity: The bail system relies on sureties and bonds, which often act as a deterrent for the poor. Repeated bail petitions get rejected as the poor do not have the monetary means.
• Absence of Well-Defined Guidelines: In the absence of well-defined guidelines streamlining the grounds for or against bail, judicial discretion can lead to different courts arriving at different conclusions on identical facts and circumstances.
• Delay in Justice: There is a delay in the disposal of bail applications, leading to lengthy hearings and judgments.
• Reluctance to Grant Bail: There is a sense of fear in trial court judges, leading to their reluctance to grant bail, which in turn has contributed to the higher courts being flooded with bail matters.
• Lack of Safeguard: The Supreme Court asserted that effective enforcement against arbitrary arrest would eliminate the need to seek bail from courts.

Way Forward
• Exploring alternatives to cash bail, like unsecured bonds, community supervision programs, or allowing property deposits instead of cash.
• Currently CrPC governs the procedures for granting bail in India. It retains a structure inherited from the colonial era. A separate law specifically focusing on granting bail in India should be made similar to the United Kingdom Act of 1976 which prescribes the procedure for granting bail.
• Provide training to judges on the principles of “bail not jail” and fair application of bail discretion.
• Strengthen legal aid programs to ensure everyone has access to legal representation during bail hearings. This can help navigate the legal complexities and present a compelling case for bail.