Bail Laws in India: Scope for Reform
- Lets Learn Law
- Jul 16
- 4 min read
"The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process". - Justice V.R. Krishna lyer
Bail is a significant aspect of the criminal justice system. Bail harmonizes the rights of the accused with the requirement to provide justice and protect the public. In India, bail laws are controlled by the Code of Criminal Procedure, 1973 (CrPC).
Meaning of Bail
The word 'bail' is derived from an ancient French verb 'bailer' that conveys the meaning of 'to give' or 'to deliver'. Bail is temporary release of an accused from custody, with the promise that he will report to the court when called upon. The literal meaning of 'bail' is seurity. It is neither a punishment nor a reprimand but a relief in law which allows the accused person to prepare his defense while keeping him at liberty.
Types of Bail in India
The Indian law divides bail into various types, based on the type of offense and the stage of legal proceedings:
1. Regular Bail: Regular bail is extended to an individual who is in police or judicial custody after being arrested. The accused may apply for bail under Sections 437 and 439 of the Code of Criminal Procedure (CrPC). The court takes into account whether the offense is a serious one, the criminal records of the accused, and the possibility of the accused absconding and avoiding justice before issuing bail.
2. Anticipatory Bail: Anticipatory bail, as per Section 438 of the CrPC, is a preventive provision enabling individuals to apply for bail ahead of arrest. This is a savior for those who are apprehensive about being falsely involved in a criminal case. Bail Lawyers in Delhi frequently help applicants in making anticipatory bail applications to avoid unnecessary harassment by law enforcement authorities.
3. Interim Bail: Interim bail is temporary relief for a brief period during which the principal application for bail is being considered. It avoids unnecessary detention and allows the accused time to challenge the detention lawfully.
4. Default Bail: Also referred to as Statutory Bail, default bail is awarded when the investigating agency does not finish investigating within the time given 60 days for minor crimes and 90 days for serious crimes under Section 167(2) of the CrPC. The accused is then entitled to bail as of right.
Bail System in India
The bail system is based on the principle that "bail is the rule, jail is the exception". However, in practice, this principle is often ignored. Courts look at several factors while granting bail, such as:
· Nature and seriousness of the offence
· Criminal history of the accused
· Health, age, and other humanitarian considerations
· Evidence against the accused
· Possibility of tampering with evidence or influencing witnesses
· Risk of absconding
In spite of these issues, the system is such that it has defects which deprive the poor and underprivileged of justice most of the time.
Problems with the Current Bail System
1. Socio-Economic Inequalities: Poor individuals spend days in jail because they cannot pay for an attorney or the bail. Rich accused individuals, however, receive bail immediately.
2. Jails Overcrowding: As per NCRB statistics (2023), more than 75% of Indian jail inmates are undertrials. A large number of them are entitled to bail but are incarcerated because of procedural delays or inability to produce sureties.
3. Postponement of Bail Hearings: Courts' huge workload leads to postponement of bail hearings, thus infringing the right to personal liberty under Article 21 of the Constitution.
4. Arbitrary Exercise of Discretion: Judges and magistrates occasionally use their discretion in a biased or uneven manner, particularly in politically charged or high-profile cases.
Solutions and Scope for Reform
1. Codification of Bail Guidelines: The Supreme Court in Satender Kumar Antil v. CBI (2021) instructed uniform bail guidelines. These must be codified into legislation so that there is consistency and justice. The case’s link is given at the end of the reference for further study.
2. Expedient Hearings: There must be specialized fast-track courts for bail to be disposed of speedily, particularly in crowded areas.
3. Empowering Legal Aid: Free legal aid needs to be made effective and accessible to everyone belonging to the category of undertrials. Paralegal volunteers can be utilized to assist prisoners in applying for bail.
4. Application of Technology: E-Courts, video conferencing, and online filing of bail applications can minimize delays and maximize access to the system.
5. Reforming Preventive Detentions: Bail is routinely refused in special law cases such as Unlawful Activities (Prevention) Act, Prevention of Money Laundering Act, Narcotic Drugs and Psychotropic Substances Act, etc. Such legislation should be examined to prevent abuse and arbitrary refusal of bail.
Conclusion
Bail laws play an important role in ensuring a balance between individual freedom and public interest. Although India has a strong legal framework in the matter of bail, its effectiveness is marred by serious shortcomings. There is a need for reforms to prevent such scenarios where any individual is incarcerated or imprisoned just because he or she is poor or illiterate. By providing timely, equitable, and accessible bail procedures, India can fulfill the constitutional guarantee of justice, equality, and freedom for all.
References
DISCLAIMER- This article has been submitted by Anurag, trainee under the LLL Legal Training Program. The views and opinions expressed in this piece are solely those of the author.
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