BAIL
REFORMS - POLITY
News: Supreme Court presses need for
reform on tedious bail processes
What's
in the news?
●
The Supreme Court has been reaching out to
the Government to “think out of the box”
and not fight every case of bail all the way up to the top court.
●
Justice Sanjay Kishan Kaul, the second
senior most judge in the top court, has been vocal about his concern of how
almost every case of bail is being challenged all the way to the Supreme Court,
forming more than one-third of the cases
in the Supreme Court.
Key
takeaways:
●
In July last year, a Supreme Court
judgment had urged the Government to
bring a new Act exclusively to simplify and streamline bails.
●
The court had observed how the mindset of
investigating agencies leaned more towards the draconian power of arrest rather
than the protection of individual liberty.
●
In July last year, a Supreme Court
judgment had urged the government to bring a new Act exclusively to simplify
and streamline bails.
●
The court had observed how the mindset of investigating agencies leaned
more towards the draconian power of arrest rather than the protection of
individual liberty.
Bail
laws in India:
Though there isn’t any
separate law in the Indian legal system that defines bail, related provisions
are mentioned in the CrPC and punishments under the IPC.
●
The CrPC categorises offences as bailable and non-bailable.
●
As per Section 436, bail is a right in bailable offences and the police or
court, whoever has custody, is bound to release the accused following
furnishing of a bail bond, with or without surety.
●
For a non-bailable offence, an accused
cannot claim bail as a right. The discretion lies with the courts.
●
In such cases, Section 437 empowers the Magistrate to deal with pleas, except for
offences ‘punishable with death or imprisonment for life’.
●
A provision mandates the court to consider
granting bail to an accused below 16 years, someone who is sick, or is a woman.
The CrPC also lists provisions for the cancellation of bail.
Problems
in the Current Bail Law:
1.
Overcrowding prisons:
●
Jails in India are flooded with undertrial
prisoners.
●
Over 75%
of India’s prison population are undertrials while overcrowding in Indian
prisons stands at 118%. These stark realities are often cited for the need of
bail reform.
2.
Mostly people from vulnerable sections:
●
Effective enforcement of safeguards
against arbitrary arrest would eliminate the need to seek bail from courts.
●
Lack of safeguards led to arrest of migrants, homeless people, people
from disadvantaged sections.
●
Data from the Fair Trial Programme (FTP)
in Yerwada and Nagpur central prisons can be instructive here. Of the
undertrials (2,313) represented by the FTP, 18.50% were migrants, 93.48% did
not own any assets, 62.22% did not have any contact with family, and 10% had a
history of previous incarceration.
3.
Court's discretion:
●
The power to grant bail is largely based
on the court’s discretion.
●
A large number of undertrials continue to
remain in prison despite being granted bail due to challenges in complying with bail conditions.
4.
Lack of finance:
●
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.
5.
Multiple and Dispersed Provisions:
●
At present, provisions related to arrest
and interrogation, issue of warrants and summons, execution of bonds and
sureties, powers of police and courts, are dispersed across CrPC and various
binding SC guidelines.
6.
Colonial Mindset:
●
The
magistrates often ignore the rule of ‘bail, not jail’ due to persistence of a
colonial mindset. This mindset is emboldened by old colonial
laws which were drafted to serve the purpose of the British.
●
The Code of Criminal Procedure (CrPC) was
first drafted in 1882 and continues to be in use with amendments from time to
time.
7.
Delays in Bail application:
●
Sometimes, bail applications are kept
pending for months. Unnecessary arrest
coupled with no bail is a double whammy. Appeals by the convicted are pending
for decades in some HCs.
8.
Lack of Uniformity:
●
The SC observed that magistrates do not
necessarily exercise their discretionary powers uniformly which violates Article 14 and 15 of the Indian
Constitution.
●
Uniformity and certainty in the decisions
of the court is required as these are the foundations of judicial dispensation.
In most cases, the courts do not record reasons for rejecting the bail.
SC
guidelines:
●
The Supreme Court noted that despite
modifications, the CrPC continues to retain its pre-independence form.
●
It observed that “unwarranted arrests” curtail liberty under Article 21.
●
Separate
law for Bail - Stressing the need to ensure due procedure
for arrests and a time limit for disposal of bail applications, the Court asked
the Centre to consider introducing an enactment
in the nature of a “Bail Act” to streamline the process.
Arrest
is a “draconian” measure that should be used “sparingly”.
It held that bail continues to be the rule and jail an exception, the
touchstone of Article 21, and
highlighted the presumption of innocence until proven guilty.