In this blogpost, Vernita Jain, Student, National Law Institute University, Bhopal, writes about what is bail, the legal position in India, judicial trend and whether getting bail is a fundamental right or not.

Meaning of Bail

What is contemplated by bail is to “procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.”

By reading the above definition of bail, it is evident that money and bail are not connected. In the case of India, a large number of the population does not have money to buy food and clothing, yet they are expected to pay money even for the cases in which they have the legal right to bail i.e in the case of bailable offense.  As a result of not having enough money a person who is poor is subjected to the atrocities of the authorities of the jail and he has to remain behind the bars.

The Legal Position in India

The Criminal Procedure Code, 1973 does not define bail or the amount of security that is necessary to be paid by the accused for securing his release. Therefore, the amount to be paid for the bail is the matter of discretion of the court. But, it is usually seen that the courts of India are not sensitive towards criminals with petty offenses and poor household, as the courts demands a sum that is unreasonable for bail. Their economic plight is not taken into consideration.

According to the 78th report of the Law Commission,  nearly 55% of the prison population is of under-trials, the reason for such a large number of people still behind the bars is that they are poor and thus unable to pay the amount that is demanded from them.

Judicial Trend

The only reason that one is denied justice and is kept behind prison is that he is poor. India has a highly unsatisfactory bail system. The bail system in India is a property-oriented approach which gives only one way out of this justice system – money.

The bail system is very harsh on poor, as only a person with money and property is capable of getting a bail, and when they are unable to pay for the bail, they have to remain in jail for a greater period. This results in these people incurring huge amounts of debts that they take for their release. This may also lead in:

• Even though they are innocent, they have to go through physical and psychological deprivations of jail life,
• They are prevented from contributing to the preparation of their defense and
• When they are under-trial, they tend to lose their job and thus are unable to support their family.

This is the very reason that a large number of populations in India find this system of bail oppressive.

Justice Krishna Iyer raised his voice against the unfair bail system in India in the case of  State of Rajasthan v Balchand , He said that the time has come to rethink the traditional  system of pecuniary bail. It may well be that in most cases an undertaking would serve the purpose.

In Moti Ram and Ors. v State of M.P, where the accused was ordered to give the amount of Rs. 10000 as security for the bail, the case went for appeal, Justice Krishna Iyer condemned the act of the CJM, and demanded that the judges should be more inclined towards bail and not jail.

Further in Hussainara Khatoon and others v. Home Sec, State of Bihar, the Court laid down the ratio that when the man is in jail for a period longer than the sentence, he is liable for then he should be released.

Refuse to give Bail- against the Fundamental Right

Article 21 of the Constitution provides us the right to life and liberty. Such right guarantees everyone in the territory of India, life with all the freedom to enjoy one’s life and liberty. But, the refusal of the right to bail or demanding the amount that a person is unable to pay is said to be an infringement of article 21 of the Constitution.

As Iyer puts it with the full authority of the Supreme Court: “Personal liberty is deprived when bail is refused, is too precious a value of our constitutional system, that the crucial power to negate it is a great trust exercisable not casually but judicially with lively concern for the cost to the individual and the community”. The constitutional emphasis was made clear in Balchand (1977): “The basic rule may perhaps be tersely put as bail, not jail”.

From this, three things are clear: (i) Bail is a fundamental right (ii) The norm is bail not jail (iii) Good reasons, with full explanation in writing must exist for denying bail. By following these norms, it can be said that if a person is denied the right to bail due to any reason, it is the infringement of his right to life and liberty.[1]

A right to bail was not inserted as a right in the constitution of India, but it is quite implicit that it has been devolved as a right under Article 21 as a component of personal liberty. But, the system of bail in India is a property-oriented approach, and it is erroneous on the part of anyone to think that if one has money he can flee from the justice system. Thus, the focus of judicial discretion in bail should always be upon the aspects of personal liberty and equality of the individual provided under Articles 14,19 and 21 of the Constitution of India.

Conclusion

A perusal of the above cases highlights the strong anti-poor bias of the Indian criminal justice system. Courts in many cases have laid down guidelines to be followed in deciding the amount of bail, but nothing has been done about it. There is an urgent need to review the bail system in the country so that even the economic condition of the criminal is kept in mind and it is important for the court to behave compassionately. Following facts can be taken into account before granting bail to a person:

(1) The nature of the offense committed by the accused.

(2) His financial condition and employment history.

(4) His character, reputation and economic conditions.

(5) Prior criminal records, if any.

(6) The identity of those who vouch for his reliability.

 (7) Any other factors, taking into consideration the risk of the criminal’s failure to appear.

[1] http://indiatoday.intoday.in/story/right-to-bail-v.-r.-krishna-iyer-kanimozhi-in-2g/1/158977.html