Context: The Supreme Court of India in Satender Kumar Antil vs CBI case has highlighted the growing reluctance on the part of trial judges to grant bail. This goes against the Indian judicial doctrine of "Presumption of Offence", thereby establishing a jurisprudence system where jail and not bail is becoming a rule.
Bail system in India
The Fair Trial Programme of Project 39A in its study of Yerwada and Nagpur central prisons, has given important highlights on bail system in India:
- 18.5% undertrials were migrants.
- 93.48% undertrials did not own any assets.
- 62.22% did not have any contact with the family.
Issues with the bail system in India
- Discretionary- The power to grant bail is largely based on the Judge's discretion, which makes bail grant/denial procedure very subjective in nature.
- Financial Constraints- The Supreme Court and the Law Commission (154th and 203rd report) has highlighted that bail is heavily influenced by the economic status of the accused.
- Violation of Criminal Jurisprudence- Supreme Court in Siddharam case had highlighted that presumption of innocence would be effective by granting bail. But denial of bail violates this criminal jurisprudence.
- Arbitrary grounds/conditions for granting bail- The judges have set conditions like high surety amount, which Supreme Court in Moti Ram case has highlighted as a human rights issue.
- Non-adherence to bail guidelines- The Supreme Court has laid down several guidelines for bail hearings. But the lower Judiciary has not adhered to these guidelines. Ex: The Courts do not usually record reasons for rejecting bail.
- Overburdening the Judiciary and Prisons- Over 75% of India's prisoners are undertrials which takes the overcrowding in Indian prisons to 118%. This has also led to high pendency of cases in India with over 5 crore cases pending in total.
- Violation of Fundamental Rights- Denial of bail on arbitrary and discretionary ground violates the Right to Life and Personal Liberty (Article 21) of the accused.
Way Forward
- New Prison manual, 2016
- Setting up of legal aid clinics for undertrials.
- Legal literacy classes in prison.
- Constitution of Undertrial review committee.
- E-Prison project to digitalize the flow of Judicial Orders on bails for instant implementation of it. Ex: SUPAC system of Supreme Court for transmitting bail orders digitally to jail authorities.
- Mulla Committee: Release of undertrial prisoners on bail as per the law commission's recommendations.
- Following Supreme Court's guidelines- Bail should be the rule and Jail should be an exception (Balachand case).
- Enacting a separate law for bail as recommended by the Supreme Court.
- Effective enforcement of safeguard against arbitrary arrests. According to The National Police Commission's Report, 60% of total arrests were uncalled for and were excessive in nature. The report also states that 42% of the expenditure in the jails was over persons who shouldn’t have been arrested in the first place.
Conclusion
Going forward, streamlining the bail procedure in India by enacting a separate law can promote human-centric model Viksit Bharat Sankalp, highlighting the inclusive development trajectory of “Sabka Saath, Sabka Vikas”.