Bail in its essence is a fine balance between the right to liberty of the person accused of an offence and the interests of society at large. The Law Commission of India has urged the government to adapt the bail law according to the changing times, changing patterns of crimes, and the arbitrariness shown by the judiciary in exercise of its discretion.
While rejecting the idea of a stand-alone law for bail, the 21st Law Commission led by a former Supreme Court judge, Justice B.S. Chauhan, suggests amendments in the Code of Criminal Procedure in its 268th report. The Commission found that the “existing system of bail in India is inadequate and inefficient to accomplish its purpose.”
It notes that grotesque crimes involving extreme violence are on the rise throughout the country. Murder has increased by 250%, rape by 873%, and kidnapping and abduction by 749% since 1953.
Further, with insufficient infrastructure, lack of modernisation of investigative machinery and other challenges, the bail system cannot be fashioned into a panacea to ensure a responsive criminal justice system in India.
Providing core principles and suggesting amendments in exercising the powers to grant or deny bail, the Criminal Law (Amendment) Bill of 2017 is a breath of fresh air. It underlines that bail practices should be fair and evidence-based. The Law Commission has suggested that decisions about custody or release should not be influenced to the detriment of the person accused of an offence by factors such as gender, race, ethnicity, financial conditions or social status.
It further recommendes that bail practices should address two key goals: create safeguards to prevent the risk of the accused failing to appear in court on a scheduled date, and protect the safety of victims of crime, and society.
The Commission also highlights the need to minimise pretrial confinement of an accused.
The report suggests futuristic measures like electronic tagging to reduce both fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense).
The Commission proposes a central digital database in the format of a Criminal Tracking Network and Systems scheme to be utilised to ensure that the person accused of an offence marks his appearance.
