Tortuous jurisprudence of bail when jails are packed with undertrials

During a recent trial, the court made certain observations that hold a mirror to the state of undertrials.

In September 2022, Allahabad High Court granted bail to a murder accused who was languishing in jail for 11 years, awaiting the conclusion of trial. While granting bail to the accused the High Court made certain observations that hold a mirror to the state of undertrials in the country, specifically regarding their chances of getting bail.

The Court in its order granting bail highlighted the fact that such undertrials who belong to the "bottom heap of humanity and unfortunately forgotten class of citizens" lack resources to get proper legal aid reflecting a "systematic failure".  The High Court asked for "corrective measures" to be taken to rectify this systematic failure. It instructed authorities concerned to organise legal aid workshops in every jail of the state to ensure that such grievances are promptly redressed.

It was neither the first time that a High Court has highlighted the flaws in the bail jurisdiction of the country. High Courts and the Supreme Court of India, have time and again reaffirmed their stance that 'bail, not jail’, is the rule and it should be the guiding principle of the bail jurisdiction in the country. Most recently this legal adage has been reiterated by the apex court while granting bail to former Deputy Chief Minister of Delhi Manish Sisodia.

Key Observations in Manish Sisodia's Bail Order 

The apex court while granting the bail to Sisodia made significant observations related to bail justice. Citing its earlier judgment it said, "Over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straightforward open and shut cases, this Court is flooded with a huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that bail is rule and jail is exception”.

Justice Krishna Iyer and the principle of bail, not jail. 

In 1977, Justice Krishna Iyer of the Supreme Court in ‘The State of Rajasthan versus Balchand alias Baliya’ laid down this cardinal principle to be followed in bail matters. He held: The basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court.  When considering the question of bail, the gravity of the offence involved and the heinousness of the crime which are likely to induce the petitioner to avoid the course of justice must weigh with the court.

Bail in Cases Related to Unlawful Activities (Prevention) Act, 1967

Supreme Court while considering an application for bail in the case of Javed Gulam Nabi Shaikh vs. State of Maharashtra, wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967 stated:  “If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.

Satender Kumar Antil vs CBI: Need for a Bail Law

In this case, the Supreme Court acknowledged and highlighted the failings of the country's bail system and in great detail delved into the issue of the state of undertrial prisoners and administering bail to them. While doing so, it asked the union government to consider bringing in a new law to streamline the bail jurisdiction.

The court also pressed for the strict compliance of sections 41 and 41A of CrPC by the investigating officers. According to these sections, a police officer can arrest without a warrant in a cognizable offence. However, as per Section 41A, of CrPC the police officer must issue a notice directing an accused to be present before him in cases where arrest is not required. Where such a person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. The court held that any non-compliance to this provision would entitle the accused to a grant of bail.

Bail is Not a Privilege But a Legal Process 

Bail is not a privilege but a judicial process that is intrinsically intertwined with the fairness quotient of justice. What forms its basis is the presumption of innocence and hence right to live a life of dignity and liberty. Indian jails are crowded with 75 percent of the inmate population being undertrials.  According to a Prison Statistics India (PSI) – 2020 report released by the National Crime Records Bureau (NCRB), the percentage of undertrial prisoners went up by over more than 10 percentage points in 10 years (between 2011 and 2020). This makes evident that accessing bail by the undertrials has become increasingly difficult over the years despite various Supreme Court and High Court judgments in favour of making bail, and not jail, the norm.

Vivek Sood, Senior Counsel in the Supreme Court who has authored a book titled 'Chaff and Grain' dedicated a chapter on the issue of bail. He writes, "In my three decades of experience as a defence counsel, I have observed that a large number of judges have never granted bail in a single case of murder and other heinous offences in their entire judicial career. This mindset, resistance and ideology against granting bail in heinous offences such as murder, etc., must change if a long-lasting reform is to be brought about in our criminal justice system."

Sood favours the granting of bail in the majority of criminal offences, except in the cases of financial fraud which he terms as "fenocide". These are the cases where people are looted of their hard-earned money like that of chit-fund scams and by real estate developers.

He makes a very significant point when he writes, "No general mathematical formula exists that can be applied as a blanket rule while granting or refusing bail to the accused. The judge decides based on the particular merits of the case and the factors mentioned here. The court has to exercise discretion judiciously and not arbitrarily."

As stated above, granting bail to an undertrial or keeping him in jail is a discretion of the court that is and must be guided by the presence of the fundamental right to life and liberty guaranteed by the Constitution. It is also embedded deeply in the notion of justice as fairness. Reflecting this principle the apex court rightly stated in a judgment: This Court has consistently observed in its numerous judgments that the liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail.

Granting bail when adverse grounds are non-existent only reinforces the idea of justice as fairness.