Context: The US President recently signed an executive order cutting federal funding for jurisdictions that allow cashless bail claiming that it leads to a rise in crime.
Relevance of the topic:
Prelims: Concept of Bail, Cashless Bail, Bail Provisions in India.
Mains: Issues in India’s Bail Provisions and the Urgent Need for Reforms.
What is Bail?
- Bail is the conditional release of an accused person from custody while awaiting trial. It is based on the principle of presumption of innocence ensuring that a person is not punished before conviction.
- The court’s concern in granting bail is that the accused:
- does not abscond or evade trial,
- does not tamper with evidence or influence witnesses, and
- remains available to face justice.
- Hence, courts require a monetary deposit or surety as a guarantee of compliance. If the accused fails to appear, the money is forfeited. This makes bail both a safeguard of liberty and a mechanism of accountability.
What is Cashless Bail?
- Cashless bail refers to the release of an accused without depositing cash upfront. Instead, the accused may sign a personal recognisance (PR) bond, be placed under community supervision, or offer other non-monetary assurances.
- The rationale is to ensure that liberty before conviction does not depend on financial capacity.
Bail Provisions in the USA:
- In the US, bail traditionally required cash deposits. Failure to pay meant remaining in custody, regardless of the seriousness of the offence. Later many US states introduced cashless bail for relatively minor non-violent offences.
Bail Provisions in India:
Bhartiya Nagarik Suraksha Sanhita, 2023 which replaced the Code of Criminal Procedure, 1973 lays down the process for releasing a person on bail. Among the conditions for bail is the furnishing of a bond or a bail bond.
Bond:
- By signing a bond an accused agrees to their bail terms and assures the court they will remain present for the trial. This is usually accompanied by a cash deposit, with the amount depending on the nature of the crime and the economic condition of the accused.
- This deposit can be forfeited if bail conditions are violated, and is refunded at the conclusion of the trial regardless of the outcome.
- If an accused does not have the means to furnish cash, courts may consider releasing them on a personal recognisance bond (PR bond). This requires the accused to arrange for the cash within a specific time after being released on bail.
Bail bond:
- A bail bond is a guarantee given by another person (family member, friend, or employer) to ensure that the accused complies with bail conditions and appears for trial. The surety may also be required to deposit a specified sum, which can be forfeited if the accused absconds.
- Courts conduct verification of the surety’s documents, financial standing, and personal background to establish credibility.
- Certain courts insist that the surety must possess financial assets, permanent residence, or be a local resident of the district.
- In cities like Mumbai, a solvency certificate issued by a revenue officer is mandatory, often causing delays of several days or even weeks in the grant of bail.
Issues in Bail Provisions in India:
- Economic Discrimination: 268th Law Commission Report (2017) held that financial surety-based bail is contrary to constitutional ethos, as it discriminates against the poor.
- Undertrial Overcrowding: National Crime Records Bureau (2022) shows that over 75% of India’s prison population are undertrials, many detained only due to inability to furnish bail.
- Procedural Delays: Mulla Committee on Prison Reforms (1983) flagged that cumbersome verification processes, such as solvency certificates, prolong custody even after bail is granted.
- Judicial Hesitancy on PR Bonds: Despite the Supreme Court in Hussainara Khatoon (1979) emphasising bail as a right, trial courts remain reluctant to release accused on personal recognisance bonds.
- Constitutional Concerns: The Supreme Court in Satender Kumar Antil vs CBI (2022) observed that denial of bail for inability to pay surety violates Article 21 (Right to Liberty).
Need for Bail Reforms in India:
- Risk-Based Assessment: The Law Commission (268th Report) recommended shifting from monetary sureties to risk-based evaluation of absconding or tampering.
- Greater Use of PR Bonds: Justice Krishna Iyer Committee on Prison Reforms (1987) stressed non-monetary bail to avoid criminalising poverty.
- Strengthened Legal Aid: NALSA Report (2023) revealed 5000 undertrials in jail despite bail orders, highlighting the need for proactive legal services intervention.
- Prison Decongestion: Supreme Court (2023) directed that undertrials not released within a week of bail must be reported to District Legal Services Authorities.
- Systemic Reform: National Police Commission (1977-81) called for liberalised bail policies to ensure speedy justice and reduce undertrial population.
The principle that “bail is the rule, jail the exception” must guide criminal justice in spirit and practice. Without systemic reforms like wider PR bonds, simplified procedures and robust legal aid, bail will remain a privilege of the rich rather than a right of all.
