Reforming Bail Provisions

• 30 Sep 2024

For Prelims: Supreme Court, Prevention of Money Laundering Act (PMLA), 2002, Detention, Article 21, Constitutional Courts, Bail, KA Najeeb Case, Cash Bonds, Surety Bond.

For Mains: Challenges associated with bail provisions in India and reforms needed.

Source: HT

Why in News?

Recently, the Supreme Court (SC) disapproved of using the Prevention of Money Laundering Act (PMLA), 2002 “as a tool” to prolong the incarceration of an accused. 

• It ruled that constitutional courts will not allow indefinite pretrial detention under the anti-money laundering law. 

What are the Key Points of SC's Ruling on PMLA and Bail? 

• No Arbitrary Detention: Although there is a prima facie case against an accused, the court can rule in favour of his release due to the prolonged detention without a clear timeline for the trial. 
  • Stringent provisions of the PMLA, 2002, especially Section 45, should not result in arbitrary detention of the accused. 
  • According to Section 45 of the PMLA, 2002 bail can be granted to an accused in a money laundering case only if two conditions are satisfied. 
    • The person has to prove in court that he or she is prima facie innocent of the offence.  
    • The accused should be able to convince the judge s/he would not commit any offence while on bail. 
• Bail Principles Affirmed: The court reaffirmed the principle that “bail is the rule, and jail is the exception” in India’s criminal jurisprudence.  
  • It was noted that the high threshold for bail under PMLA must not lead to an indefinite loss of personal liberty for the accused. 
• Judicial Concerns on Delayed Trials: The ruling highlighted the intersection of delayed trials and harsh bail provisions under special laws like PMLA, 2002, or UAPA, 1967 and Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS). 
  • The expeditious disposal of trials is necessary and should be integrated into the interpretation of these laws. 
• Judicial Authority to Grant Bail: The SC reiterated that stringent bail provisions do not stop constitutional courts from intervening in cases where trials are excessively delayed. 
  • The Supreme Court referenced its  2021 judgement in the KA Najeeb case that recognised inordinate delays in trials as a ground of bail in UAPA cases. 
• Impact on Fundamental Rights: Excessive delays in trials could infringe on the fundamental rights of individuals under Article 21 of the Constitution, which guarantees the right to life and personal liberty. 
  • Prolonged incarceration without trial can result in unjust deprivation of liberty, highlighting cases where individuals were acquitted after years of detention. 
• Potential Claims for Compensation: The SC suggested that individuals who suffer wrongful imprisonment may have grounds for compensation due to violations of their rights under Article 21. 

What are the Concerns Regarding India's Bail System? 

• High Proportion of Undertrials: Over 75% of India’s prison population comprises undertrials and overcrowding in prisons is reported at 118%. 
  • This situation reflects systemic inefficiencies in the bail system that need urgent reform. 
  • The Supreme Court of India, in Satender Kumar Antil vs CBI, 2022 acknowledged the failings of the country's bail system in recognizing the issue of undertrial and granting bail. 
• Undermines Principle of 'Presumption of Innocence': Crowding of jails with undertrial prisoners undermines the principle of 'presumption of innocence'. 
  • Presumption of innocence is a legal principle that states that a person shall have the right to be presumed innocent until proven guilty according to law. 
• Lack of Empirical Evidence: Information regarding the demographics of undertrials, category of offences and timelines for bail, proportion of undertrials applying for bail, the acceptance or rejection rates of bail applications, and the challenges in bail compliance remain is not widely available.  
• Lack of Safeguards: The arrest of a person is justified as ‘necessary’ if the police have ‘reasons to believe’ that arrest is required to ensure their presence in court.  
  • Many arrested individuals, particularly from disadvantaged sections of society, remain unprotected. 
• Challenges in Bail Adjudication: The power to grant bail is largely based on the court’s discretion and depends on the facts of each case.  
  • Bail is denied based on the gravity of the offence, character of the accused and likelihood of the accused absconding or tampering with evidence.  
• Challenges in Bail Compliance: A large number of undertrials continue to remain in prison despite being granted bail due to challenges in complying with bail conditions.  
  • Bail conditions in the nature of cash bonds, surety bond, proof of property ownership and solvency, make it harder for poors to secure their release. 
• Flawed Assumptions: The bail system has flawed assumptions that every arrested person will be propertied or have access to propertied social connections.  
  • It presumes that the risk of financial loss is necessary to ensure the presence of the accused in court. 

What are Supreme Court judgments Regarding Bail System? 

• Babu Singh v. State of Uttar Pradesh Case, 1978: Bail should generally be granted unless there are substantial grounds for believing that the accused will abscond or tamper with evidence. 
• State of Rajasthan v. Balchand Case, 1978: SC held that Bail is the rule and Jail is an Exception.  
  • Detention of a person affects his right to life and liberty and the main objective of detention is to ensure easy availability of an accused for trial without any inconvenience.  
• Parvez NoordinLokhandwalla v. State of Maharashtra Case, 2020: It was noted that bail conditions should not be excessive compared to their intended purpose. 
• Satender Kumar Antil v CBI Case, 2022: Courts must ensure that strict bail conditions do not disproportionately affect the accused. 

Way Forward 

• Simplification of Bail Conditions: Reassess and simplify bail conditions to make them more accessible, particularly for individuals from economically disadvantaged backgrounds.  
  • E.g. Community service as alternative to cash and surety bonds. 
• Safeguards Against Arbitrary Arrests: Introduce strict guidelines and safeguards to protect against arbitrary arrests, particularly for vulnerable populations.  
  • Police must provide clear justification for arrests. 
• Community-Based Supervision Programs: Develop community-based supervision programs as alternatives to incarceration.  
  • These programs could involve monitoring undertrials through local organisations or social workers, rather than relying solely on bail. 
• Alternative to Petty Criminals: Petty criminals awaiting trial could be ordered to stay in reformatory facilities where they can engage in useful labour, such as volunteer work. 
• Speedy Trials: The Supreme Court Committee on Prison Reforms headed by Justice (retd) Amitava Roy underlined that speedy trial can become an effective tool to address the issue of overcrowding in jails. 
• Adequate Infrastructure: The report “Empirical study to evaluate the delivery of justice through improved infrastructure” issued by the Ministry of Law and Justice highlighted that increased space of courtrooms, availability of basic furniture, digital infrastructure, and skilled manpower can reduce the number of under-trial prisoners. 
• Clear Legal Provisions: Clearly defined laws help individuals understand their rights and responsibilities, decreasing the chances of prolonged detention caused by misunderstandings.

Drishti Mains Question: 

Examine the challenges associated with accessing bail in India and suggest measures for a more equitable bail provision framework.

UPSC Civil Services Examination, Previous Year Question (PYQ)

Prelims

Q. With reference to India, consider the following statements: (2021) 

1. When a prisoner makes out a sufficient case, parole cannot be denied to such prisoner because it becomes a matter of his/her right. 
2. State Governments have their own Prisoners Release on Parole Rules. 

Which of the statements given above is/are correct? 

(a) 1 only  

(b) 2 only  

(c) Both 1 and 2 

(d) Neither I nor 2 

Ans: (b)

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Mains 

Q. Discuss how emerging technologies and globalisation contribute to money laundering. Elaborate measures to tackle the problem of money laundering both at national and international levels. (2021)