By Mohd Naushad Khan

Misuse of the provisions of bail laws is not new but these days it has become a routine affair. The provisions of bail laws are being manipulated not to ensure bail quickly, which the experts believe is the denial of a person’s right to liberty. In the Bail Act of 1976 in United Kingdom the emphasis has been on the person’s right to liberty.                

However, in India on 11 July, 2022, the Supreme Court issued orders directing courts and investigative organisations to avoid making “unnecessary” arrests and urged the government to draft new bail laws in order to streamline the bail process. There is no specific provision on bail under the Constitution, according to a bench of Justices Kaul and M.M. Sundresh, hence bringing the bail law is seen to be of “urgent necessity.”

The Judges took into account the fact that the country’s conviction rate is “abysmally low.” The Supreme Court issued these instructions, claiming that the current state of the legal system, which exhibits a high number of arrests, exhibits a colonial mindset and gives the appearance of a “police state.” “In a democracy, there can never be an impression that it is a police state, as both are conceptually opposite to each other,” the bench said.

The court also made the following important observations and issued the following directives: 1. Persons charged with the same crime must never be treated differently, whether by the same or different courts. 2. Whatever may be the nature of the offence, a prolonged trial, appeal, or revision against an accused or a convict under custody or incarceration would be violative of Article 21. Speaking at an event recently, the Chief Justice of India, NV Ramana, spoke about how the process is the punishment in our criminal system. He said that from hasty indiscriminate arrests to difficulty in obtaining bail, the process leading to the prolonged incarceration of undertrials needs urgent attention.

According to Dr. Hanif Qureshi, senior IPS officer who has vast experience of policing comprising criminal investigations, traffic, intelligence operations, police training, and handling law and order situations and has served as Secretary to the Govt of Haryana, “Nearly 70% of the prison population in India consists of undertrials, most of whom are poor and from marginal sections of the society. The Supreme Court is rightly concerned over the CrPC’s colonial biases and suggested that progressive bail reforms are required.

“Bail matters are decided based on the provisions of CrPC relating to provisions of arrest and interrogation, issue of warrants and summons, execution of bonds and sureties, powers of police and courts, and judgments of various High Courts and the Supreme Court. This diversity of sources may cause different interpretations leading to different set of criteria being applied to similar bail matters. A law collating these in one place will promote uniformity of decisions.”

He added, “A related issue which the Supreme Court has also raised is the attitude of judicial officers. This relates to whether the low rate of conviction tends to make judges adopt a negative attitude towards bail. Many judges adopt a strict attitude towards bail as they think that convictions have a low probability. In some cases, there is huge pendency of bail applications. For instance, Patna High Court had earlier raised a concern about a “phenomenal increase” in the filing of bail applications due to the enforcement of prohibition in the state.”

“The Supreme Court had agreed with the suggestion made by Advocate Shoeb Alam that from an Article 21 perspective and in order to reduce the burden on the High Court, “provisions of Section 436-A CrPC should be employed, which provides for the grant of statutory bail to any person facing an investigation or trial if such a person has been in custody for more than one half of the maximum sentence specified for that offence. On the other hand, offenders of heinous crimes must not get the benefits of bail, which they sometimes are able to get due to numerous flaws in the system,” said the IPS officer. 

“A comprehensible law on bail would be able to separate the cases where bail may jeopardise trial, either through escape of notorious criminals or otherwise and other simple cases. This would make the task of the judiciary as well as the police more structured. The law on bail exists in many other countries. For instance, the Bail Act, 1976 of the UK identifies various categories of offences such as terrorist, sexual, violent offences, and other types of offences. A similar legislation would go a long way in providing clarity on bail relating to various offences in India,” argued Dr Qureshi.

Sanjay Hegde, a senior Supreme Court lawyer, while sharing a different perspective, said, “We do not need a new bail law; we need a change in judicial mindset from the magistrate upwards. Each arrest must be tested, right at the initial stage for compliance with legal safeguards and non-compliance should lead to immediate release. Magistrates and trial judges need to be reinforced in the law that bail is the rule and jail the exception.”

“The Supreme Court has time and again reiterated that magistrates must not unreasonably curtail personal liberty while deciding bail applications. However, the lower courts as well as the police routinely violate CrPC provisions relating to arrest and apex court’s directions, including the Arnesh Kumar Guidelines. Therefore, in another attempt to address prison overcrowding and alarming rates of pretrial detention, the apex court has suggested the enactment of a bail law. While a standalone law might be able to streamline bail processes, at the end of the day, bail is a discretionary process and as long as magistrates don’t give primacy to individual liberty, we will continue to have one of the highest proportions of undertrial population in the world,” Raja Bagga, Assistant Director, Criminal Justice Clinic, Jindal Global Law School.

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