Right to Bail Provisions in India, Challenges Associated and Suggestions

Context: The Supreme Court of India declared that the right to bail should not be denied as a form of punishment, regardless of the crime’s severity.

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• The decision came during the hearing of an appeal by Javed Gulam Nabi Shaikh against a Bombay High Court decision that denied him bail under the Unlawful Activities (Prevention) Act, 1967 (UAPA).
• The court also emphasised that the state and prosecuting agencies should ensure they do not hinder the right to bail on the basis that the crime is severe.
  • They must also facilitate a speedy trial as per Article 21 of the Constitution, which is fundamental to protecting individual rights.

Bail Provisions in India

• Bail involves the temporary release of an individual accused in a criminal case pending the court’s final decision.
• Types of Bail:
  • Regular Bail: This type of bail allows an accused person to be released from custody to ensure their presence at trial.
  • Interim Bail: Granted temporarily, this bail remains effective during the period a bail application (regular or anticipatory) is under consideration.
  • Anticipatory Bail: This form of bail is provided to individuals expecting arrest for a non-bailable offence.
• The Code of Criminal Procedure, 1973, outlines the bail conditions in India but does not explicitly define “bail,” although it does categorise offences as “bailable” and “non-bailable.”
• The introduction of the Bharatiya Nyaya Sanhita (BNS), 2023, has led to significant updates in bail regulations while maintaining the core principles of bail.

Key Changes Under Bharatiya Nyaya Sanhita (BNS), 2023

• Bail for First-Time Offenders: First-time offenders who have completed one-third of their prescribed jail term may be granted bail, except in cases involving death or life imprisonment sentences. This change aims to decrease the number of undertrial prisoners.
• Timely Bail Application Processing: The BNS mandates the swift handling of bail applications to avoid extended detentions of undertrial inmates.
• Bail Consideration Post-Charge Sheet: Courts are now instructed to consider bail for accused individuals in custody once a charge sheet is filed, unless strong reasons exist to refuse bail.
• Special Considerations for Vulnerable Groups: The BNS continues to provide specific relief for women, children, and the ill, facilitating easier access to bail for these groups.

Challenges Associated

• High Undertrial Population: A significant proportion of India’s prison population consists of undertrials, who remain in custody for extended periods due to sluggish bail processes and systemic inefficiencies This has resulted in overcrowded prisons, with occupancy rates exceeding official capacities significantly.
  • Example: India’s criminal justice system has over 75% of prisoners awaiting trial and prisons operating at 118% capacity.
• Socio-Economic Barriers: A lack of financial resources to arrange for bail bonds or local sureties is a major hindrance, particularly affecting those from marginalised backgrounds. The lack of residence or identity proof and familial support further complicates their ability to meet bail conditions.
  • Example: Data from the Fair Trial Programme (FTP) in Yerwada and Nagpur central prisons reveals that 93.48% of undertrials represented by the FTP did not own any assets, making it challenging for them to meet bail requirements
• Judicial Discretion and Lack of Transparency: The discretion granted to courts in bail matters often results in strict conditions or outright denial of bail, especially without clear, recorded reasons. This lack of transparency in decision-making processes can lead to inconsistent bail adjudications.
• Flawed Assumptions and Inadequate Legal Support: There is an underlying assumption that accused individuals will have the financial means or property required to meet bail conditions. Moreover, undertrials often lack adequate legal support to navigate these challenges effectively.
• Delays in Bail Compliance: Studies indicate that even after bail is granted, a significant percentage of undertrials are unable to comply with the conditions promptly, leading to prolonged detention.

Suggestions For Improvement

• Enacting specific legislation aimed at bail reform to ensure more consistent and fair bail practices.
• Re-evaluating judicial approaches to bail, ensuring decisions are well-documented and reasons for bail denial are clearly stated.
• Implementing support systems to help undertrials meet bail conditions, especially those from disadvantaged backgrounds.
• Advocating for a shift in perspective from ‘bail not jail’ to truly upholding the presumption of innocence until proven guilty.

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