Discussions on bail reform usually arise when exceptional cases capture public attention. However, bail reform must begin by addressing two key facets of the criminal justice system: judicial discretion and monetary surety bonds.
Judicial discretion
The power to grant bail is a discretionary power vested in judges and it is meant to be exercised liberally. The Supreme Court has consistently reiterated that “bail is the rule, jail is an exception”. The primary purpose of bail is to ensure the accused person’s compliance with investigation, and subsequent presence at the trial if they are released after arrest. The refusal to grant bail deprives individuals of liberty by confining them in jails without trial and conviction.
At present, the power to grant bail is exercised sparingly. Subordinate courts even routinely reject bail for specific offences like minor excise offences. It is pertinent to note that a majority of those policed under excise laws belong to marginalised communities. Without grant of bail by the lower courts, the accused persons are required to approach the High Court or the Supreme Court. Consequently, most accused persons remain incarcerated as undertrials for extended periods of time. Two-thirds of India’s prison population comprise undertrials from Dalit, Adivasi and Other Backward Classes communities, often accused of minor offences.
The pendency of bail applications has particularly increased during the pandemic — both due to the shutting down of courts and the exacerbation of arrests for minor offences by the police. Despite the Supreme Court’s orders to decongest prisons, arrests for minor offences continued unabated, according to a study of pandemic policing in Madhya Pradesh by the Criminal Justice and Police Accountability Project (CPAProject).
The system of bail typically requires sureties to furnish a bond for some property valued at the amount determined by the concerned judge. The bail amount in subordinate courts, even for petty offences punishable by less than three years, is a minimum of ₹10,000. In cases of bail before the High Courts and the Supreme Court, this amount usually exceeds ₹30,000. However, even this amount is a rare mercy. For instance, a 14-year-old minor’s surety for four cases of theft and house breaking was set at ₹2 lakh by the sessions court in Bhopal. This is a form of injustice when a majority of citizens are landless with meagre incomes. A report by Azim Premji University highlights that even among regular wage workers, 57% Indians earn less than ₹10,000 per month. Official data from the Socio-Economic Caste Census pegs rural landlessness at 57%, and this is higher if you are Dalit or Adivasi. Therefore, those without assets, even when granted bail, end up languishing in jails or incur debt by paying others to stand as fake sureties to secure their freedom. A bogey of middlemen has also emerged due to these high bail amounts. This economy of exploitation receives scant attention in discussions of reform. The grant of bail on a personal bond without sureties i.e., release on one’s own guarantee without any monetary amounts, although permissible in law, is rare.
In the 1978 Supreme Court case of Moti Ram v. State of Madhya Pradesh , Justice V. R. Krishna Iyer identified the issue of unreasonably high sureties as a human rights problem. The court then suggested that surety amounts be determined by considering relevant variables such as the socio-economic location of the accused person.
Preposterous bail conditions
During the lockdown, the Gwalior Bench of the M.P. High Court deemed it fit to impose peculiar conditions while granting bail to certain applicants. These included installing a non-Chinese LED TV at the District Hospital, registration as a “voluntary COVID-19 warrior” and donating money for COVID-19 relief. This continued despite the Principal Bench of the High Court stating that bail orders requiring the deposit of cash amounts are “unjust, irregular and improper”.
Bail indiscretions by judges of lower courts and High Courts have passed by with little accountability or oversight by the apex court. Even when not ridiculous, bail conditions can transgress personal liberty and are often paternalistic. Courts introspect little about standards of liberty, reasonableness and proportionality when deciding bail matters. A report by the Centre for Law and Policy Research recommends the creation of checklists to address individual discretion while deciding bail applications. Yet, the reflection of our society’s inherent caste and class biases in judicial decisions is likely to persist even with checklists. The legacy of Moti Ram has been honoured more in breach than in its spirit.
Nikita Sonavane, Srujana Bej & Ameya Bokil are with the CPAProject
