Reform bail law, but make the right diagnosis first

Any reimagination of the law needs to examine the exact nature of what is causing large-scale undertrial incarceration

Updated - July 26, 2022 12:46 pm IST

Published - July 26, 2022 12:08 am IST

‘Bail conditions are at odds with the reality of undertrial prisoners languishing in jails’

‘Bail conditions are at odds with the reality of undertrial prisoners languishing in jails’ | Photo Credit: Getty Images

Over 75% of India’s prison population are undertrials while overcrowding in Indian prisons stands at 118%. These stark realities are often cited to represent the scale of the crisis in India’s criminal justice system. The Supreme Court of India recently acknowledged, in Satender Kumar Antil vs CBI, the ineffectiveness of India’s bail system and its contribution to this crisis. The Court noted that despite repeated guidelines on bail law, things have not changed much on the ground. The Court provided comprehensive guidelines on laws related to bail, such as mandating timelines for the disposal of bail applications and laying emphasis on the need to enact a separate legislation. The judgment noted that crowding jails with undertrial prisoners ignored the principle of ‘presumption of innocence’ and that ‘bail not jail’ should be the norm. However, there is still a need to reflect on why these established principles are honoured more in their breach than observance.

Any reimagination of the law on bail needs to first understand the exact nature of the problem that results in large-scale undertrial incarceration. This assessment needs to be based on multiple parameters and we have no real empirical evidence on how each of these impacts the issue. What proportion of undertrials are applying for bail? What proportion of bail applications are accepted or rejected, and on what grounds? Is bail compliance a far bigger problem than denial of bail? These are some fundamental empirical questions which need answers. An effective bail law must be based on the correlation of these answers with variables such as the demographics of undertrials, category of offences and timelines for bail, and also address socio-economic and structural barriers. The foundations of the current bail law ensure that it is anti-poor and disproportionately burdens those from marginalised backgrounds. The solutions we intend to craft must be based on a deep and realistic understanding of the problem.

Lack of safeguards

The Court averred that effective enforcement of safeguards against arbitrary arrest would eliminate the need to seek bail from courts. However, these safeguards exclude a significant proportion of arrested persons, especially those from disadvantaged sections of society, who form the large majority of undertrial prisoners. For example, the arrest of a person is justified as ‘necessary’ if the police have ‘reasons to believe’ that it is required to ensure their presence in court. Such vague justifications put migrants, persons without assets or those with no contact with family at higher risk of arrest because of their socio-economic conditions. 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. Evidently, a significant proportion from the sample would be unjustifiably excluded from protections against arrest and contribute to the large proportion of undertrials in our prisons.

Approach to bail adjudication

The power to grant bail is largely based on the court’s discretion and depends on the facts of each case. The Supreme Court has time and again laid down principles for guiding the exercise of such discretion by courts in deciding bail applications. While these guidelines lay stress upon the need to release applicants on bail, they also validate the denial of bail or imposition of onerous bail conditions based on the gravity of the offence, character of the accused and likelihood of the accused absconding or tampering with evidence. In all such cases, courts rarely exercise their discretion for granting bail and are likely to take a more stringent approach against release on bail. Despite existing guidelines, courts do not usually record reasons for rejecting bail; the rationale behind how courts factor in offence-based and person-based considerations in deciding bail applications remains unclear.

This is important because marginalised persons bear the brunt of these broad exceptions. They are either denied bail or granted bail with onerous conditions, in absolute disregard of their realities. Bail conditions in the nature of cash bonds, surety bond, proof of property ownership and solvency, as is commonplace, are at odds with the reality of undertrial prisoners languishing in jails.

Challenges in bail compliance

A large number of undertrials continue to remain in prison despite being granted bail due to challenges in complying with bail conditions. 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, realities borne out by our experience in the FTP. However, factors such as lack of residence and identity proof, abandonment by family and limitations in navigating the court system also undermine an undertrial’s ability to comply with bail conditions. Compliance with bail conditions and ensuring presence in courts for the overwhelmingly structurally disadvantaged undertrials requires constant handholding, as is evident by the FTP’s interventions in the past three years. This is a crucial aspect of ensuring last mile delivery of justice that the extant bail law does not consider.

Our experience shows that in 14% of cases, undertrials were unable to comply with bail conditions and remained in prison despite being granted bail. In almost 35% of these cases, it took over a month after obtaining the bail for undertrials to comply with bail conditions and secure their release.

Flawed assumptions

The bail system, as it currently operates, has flawed assumptions that every arrested person will be propertied or have access to propertied social connections. It presumes that the risk of financial loss is necessary to ensure the presence of the accused in court. Such assumptions have the effect of rendering the rule of ‘bail not jail’ meaningless for a significant proportion of undertrial persons. For any bail law to effectively provide relief, a careful re-evaluation of the said presumptions is imperative. There is an urgent need for bail reform but it would be counterproductive to undertake a reform exercise without first developing the empirical basis to understand and diagnose the problem at hand.

Medha Deo and Mayank Labh are with the Fair Trial Programme, an undertrial legal aid initiative at Project 39A, National Law University Delhi. The programme provides legal aid to undertrials in Pune and Nagpur central prisons

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