BAIL: A RULE TURNING INTO AN EXCEPTION?

Author: Priyanshi Bhageria, 1st year law student at Dr. RMLNLU, Lucknow with deep
interest in human rights law, constitutional law and criminal law.

Recently Varvara Rao was granted bail in the Elgar Parishad case after a long wait. However,
there are many who await justice. The Jharkhand-based human rights defender Father Stan
Swamy, journalist and activist Gautam Navlakha, retired professor Shoma Sen and Sudha
Bharadwaj to name a few. They have moved petitions after their health conditions
deteriorated in prison. The courts, however, have denied them relief. How far are the courts
justified to deny bail? This article seeks to talk about the existing jurisprudence and laws in
this regard and discuss the problems in the system of bail in India.

WHAT DO THE LAWS SAY?

In India, there are two types of offences, bailable and non-bailable. Bailable offences are
listed in Schedule 1 of the Civil Procedure Code, 1908. In bailable offences, bail is granted as
a matter of right. On the other hand, in the case of non-bailable offences, bail is granted at the
discretion of the courts. This discretion cannot be arbitrary and should be guided by sound
legal principles.

The Apex Court from time to time has reiterated that bail is a rule and jail is an exception.
For example in the State of Rajasthan v. Balchand alias Baliya (1978), the Supreme Court
had explicitly stated in its judgement that bail is a rule and jail is an exception. The
judgement was based upon several rights that have been guaranteed by the Constitution
especially Article 21. The Court further took cognisance of the provisions of the Criminal
Procedure Code, 1973 and said that the arrest of an individual must be interpreted in a sense
that unless indispensable, detention of a person must be avoided.  In  Rasik Lal case (2009)
too, the Supreme Court had said that bail is ‘an absolute and indefeasible right’ and ‘no
discretion can be exercised’ in bailable offences. Very recently, Justice D Y Chandrachud
while defending the right of bail in the Arnab Goswami case had said, “Our courts must
ensure that they continue to remain the first line of defence against deprivation of the liberty
of citizens. Deprivation of liberty even for a single day is one day too many.”

In non-bailable offences, though bail is discretionary, the courts have to come to a decision
which is guided by the legal principles. In Rao Harnairain Singh (1958), the Supreme Court
itself said that this discretion must be judicially exercised subject to restrictions mentioned in
Section 437(1) of CrPC. In Govind Prasad (1975), the Supreme Court held that the granting
of bail is a judicial, not a ministerial act. Therefore, there is no lack of protection of an
accused in the relevant case laws and statutory provision. In fact, under Section 167 of CrPC,
a person has an absolute statutory right to bail if he is accused of an offence punishable with
death, life imprisonment or 10 years’ imprisonment and an investigation is not completed
within 90 days in cases of serious crimes and within 60 days for other crimes. However, the
picture is not so happy on ground.

Even after an unambiguous stance by the Apex Court and explicit statutory provisions that
exist, bail is a far-sighted dream for many. According to recent data collected by National
Crime Records Bureau, there are almost 70% of under-trials in Indian jails. With 4.66 lakh
prisoners where the total capacity of jails is 3.96 lakh. Because of the withholding of bail, the
prison infrastructure is severely pressed. This gives rise to the question of justice and human
rights that would eventually justify a ‘bail as norm’ stance. There are instances of wrongful
incarceration, where under-trials are found not guilty after lengthy trials and equally lengthy
periods in prison. The data also reveals that most of the victims of non-compliance with the
“bail as norm” principle are the marginalized sections. 30% of the under-trials are illiterate
which implies that a significant part comes from the marginalized sections of the society
while as many as 70% are dropouts from school.

According to the Prison Statistics India 2015, SCs, STs and OBCs, made for 66% of the
under-trials in the country who were in prison. This implies that it is the weak and the
marginalized who eventually have to pay the price. This gives rise to the systematic
oppression of the accused thereby robbing him of his fundamental rights.

According to a study of pandemic policing by the Criminal Justice and Police Accountability
Project, the pendency of bail applications has increased during the pandemic despite the
Supreme Court’s orders to decongest prisons. Arrests for minor offences have continued and
subordinate courts have denied bail. Since the nature of bail is neither preventive nor punitive
rather it is the right of an accused, the refusal of bail in such cases is a blatant violation of the
rights and the principles established by the Apex Court.

THE UNGUIDED DISCRETION OF COURTS IN NON-BAILABLE OFFENCES

Firstly, talking about the problematic discretion exercised by the court, in my opinion, this
problem is two-fold. It has been observed that the courts have either denied bail completely
or have imposed arbitrary conditions while granting bail. Let us illustrate this with a few
examples. The Bombay High Court has previously denied bail to Delhi University Professor
GN Saibaba who was differently-abled. Further, very recently Anand Teltumbde, who is 70
years old, suffers from respiratory disease has been denied bail by a special court in Mumbai.
While in jail, a staff member of his jail had tested positive for COVID-19, Teltumbde was not
tested for a few days and then shifted to another jail in Mumbai which was overcrowded.
Even after compelling health conditions of the accused, the courts have been insensitive
enough to deny bail.

The second part of the problem is the imposition of arbitrary conditions while granting bail
even when the Supreme Court has held that the only condition to be imposed in cases of bail
would be that of surety.

Recently, when Umar Khalid was granted bail in the Khajuri Khas riots case on the condition
of installation of the Arogya Setu App, an app which has come under a lot of scanners
because of its privacy concerns. However, this is not an isolated case when the courts have
imposed bizarre conditions on the accused while granting bail. The MP High Court imposed
certain pecuniary conditions on the accused such as installing a non-Chinese LED T.V. at the
District Hospital, donating money for COVID-19 relief and registering as a “voluntary
COVID-19 warrior”. Further, the Jharkhand High Court also, while granting bail to Som
Marandi, former BJP MP, and five others, directed the accused to deposit Rs 35,000 each in
the newly formed PM CARES Fund and download the Aarogya Setu app. Hence, we see that
the court has been flouting the established principles with regards to bail which compromise
the rights of the people. The main purpose of granting bail is to ensure the accused’s
compliance with the investigation, and presence at the trial whenever it takes place. Such
conditions imposed by the courts are not in furtherance of the purpose of bail. Moreover,
these conditions are not free from political undertones which is problematic.
When we talk of conditions while the grant of bail, an inalienable condition is that of a surety
or a personal bail bond. In most cases, the amount for the same has been way too high. The
bail amount in subordinate courts is ₹10,000 at least, even for petty offences punishable by
less than three years. On the other hand, the amount exceeds ₹30,000 in the Supreme Court
and High Courts. A recent report by Azim Premji University states that 57% of the people in
India earn less than ₹10,000 per month. This problem of high rates of the personal bail bond
also keeps thousands in jails till the trial ends.  

CONCLUSION

The system of bail in India is severely flawed and is not in favour of the accused. The
accused has to face exploitation and harassment at different levels after being arrested with
little help from the subordinate courts. The trial period, extending too long in most cases
deprives the accused of all rights that are guaranteed by the various statutory provisions
including the Constitution. It is now time that there are reforms in the way bail is granted to
an accused. A time period must be formulated and strictly adhered to within which the
accused must be granted bail. The arbitrary conditions imposed by the lower courts must be
reported and should be checked by the higher courts. Lastly, the high rate of personal bonds
should be revised in the interest of justice and equity.