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Need to reform bail law

Published: 8th Mar, 2024


The Supreme Court of India recently acknowledged the ineffectiveness of India’s bail system and its contribution to crisis. Despite repeated guidelines on bail law (such as timelines, separate legislation), things have not changed much on the ground.

1: Dimension: Crisis in India’s criminal justice system

  • Large number of undertrials: Over 75% of India’s prison population are undertrials while overcrowding in Indian prisons stands at 118%.
  • Marginalised persons bear the brunt: The foundations of the current bail law ensure that it is anti-poor and disproportionately burdens those from marginalised backgrounds.
    • Data from the Fair Trial Programme (FTP) in Yerwada and Nagpur central prisons can be instructive here. Of the undertrials (2,313), 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. 
  • Bail rejections with no clear rationale: The power to grant bail rests on court discretion, guided by principles emphasizing release but allowing denial or imposing stringent conditions based on offense severity, accused character, and flight risk, yet often lacking clear rationale for rejection.
  • Incompliance: 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.
  • Flawed assumptions: The current bail system operates on flawed assumptions of wealth and social connections, undermining the principle of "bail not jail" for many undertrial individuals, necessitating urgent reform grounded in empirical understanding.

2: Dimension: Required measures

  • Presumption of innocence: 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. 
  • Effective bail law: 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.
  • Enforcement of safeguards against arbitrary arrest would eliminate the need to seek bail from courts. 

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