Reforming India's Undertrial Bail System

• 11 Mar 2024

For Prelims: Supreme Court of India, Bail, Types of Bail

For Mains: Protection of Fundamental Rights in Criminal Justice Process, Judiciary, Constitutional Protection, Types of Bail, Undertrial incarceration

Source: TH

Why in News?

The Supreme Court of India's acknowledgement in the case of Satender Kumar Antil vs Central Bureau Of Investigation, 2022, highlights the inefficacy of India's bail system and its role in exacerbating the crisis of undertrial incarceration.

• This recognition underscores the pressing need for reforming bail laws to address systemic challenges within the criminal justice system.

What are the Concerns Regarding India's Bail System?

• High Undertrial Population:
  • Over 75% of India’s prison population comprises undertrials, indicating a significant problem with the bail system.
    • An undertrial prisoner is someone who is accused of a crime but has not been convicted. They are kept in judicial custody, while their case is being heard in court.
  • The overcrowding rate in Indian prisons is at 118%, reflecting systemic issues within the criminal justice system.
• Bail Adjudication:
  • Bail adjudication relies heavily on court discretion, considering the specifics of each case.
  • The Supreme Court provides guidelines for this discretion, emphasising the need for granting bail but also allowing denial based on factors like the gravity of the offence and the likelihood of absconding.
    • Courts often lean towards denying bail or imposing strict conditions, despite the guidelines advocating for bail release.
    • Courts frequently do not provide reasons for denying bail, leaving the rationale behind decisions unclear.
  • Marginalised individuals are disproportionately affected by these broad exceptions, facing either bail denial or stringent conditions.
• Challenges in Bail Compliance:
  • Many undertrials stay in prison even after receiving bail due to difficulties in meeting bail conditions.
    • Lack of resources to arrange money or property and find local sureties are major obstacles to compliance.
    • Other factors such as lacking residence and identity proof, being abandoned by family, and struggling to navigate the court system also hinder compliance.
  • Supporting undertrials in meeting bail conditions and ensuring court appearances is crucial, especially for those facing structural disadvantages.
  • Existing bail laws fail to address these challenges adequately.
  • Data from the Fair Trial Programme (FTP) in Yerwada and Nagpur shows that Existing bail laws fail to address these challenges adequately.
    • In 14% of cases, undertrials couldn't comply with bail conditions, resulting in continued imprisonment.
    • In almost 35% of cases, it took over a month after bail was granted for undertrials to meet bail conditions and secure release.
• Lack of Safeguards:
  • The Supreme Court emphasises the importance of safeguards against arbitrary arrest to reduce the need for seeking bail.
    • Arbitrary arrest and detention is the arrest or detention of a person without evidence of a crime or proper due process.
  • However, these safeguards often exclude many individuals from disadvantaged backgrounds, who make up the majority of undertrial prisoners.
  • Data from the FTP highlights this issue: of the undertrials (2,313) represented by the FTP, 18.50% were migrants, 93.48% did not own any assets, 62.22% did not have any contact with family, and 10% had a history of previous incarceration.
    • This data indicates a significant portion unjustifiably excluded from arrest protections, contributing to the high number of undertrials in prisons.
• Flawed Assumptions:
  • Current bail system assumes all arrested individuals can afford bail or have influential social connections.
    • It believes financial risk is necessary to ensure the accused appears in court.
  • This contradicts the principle of "bail not jail," which aims to release individuals awaiting trial.
  • Thus there is a need for reforming the bail system, however, reforms should be based on understanding the problem through empirical evidence.

Note

• The Fair Trial Programme (FTP) is a criminal justice initiative based at the National Law University in Delhi. The FTP's goal is to ensure fair trials for undertrial prisoners.
  • The FTP trains and mentors young professionals, such as lawyers and social workers, to collaborate with the State Legal Services Authority.

Police Custody And Judicial Custody

• Police custody means the accused is held by the police in a lock-up to prevent tampering with evidence or influencing witnesses after an FIR is filed for a cognizable offence.
• Judicial Custody means an accused is in the custody of the concerned Magistrate. It is for serious offences, where the court may detain the accused to prevent tampering with evidence or witnesses after the police custody period ends.

Aspect	Police Custody	Judicial Custody
Custody Location	Lock-up of a police station or with investigating agency	Jail under custody of Magistrate
Appearance before Court	Within 24 hours before the concerned Magistrate	Until there is an order from the Court for bail
Commencement	At the time of arrest by a police officer after receiving a complaint or filing an FIR	After public prosecutor satisfies the court that the custody of the accused is necessary for investigation
Maximum Duration	24 hours (extendable to 15 days by the appropriate Magistrate)	90 days for offences punishable with life imprisonment, death, or imprisonment for not less than ten years; 60 days for other offences

Way Forward

• Revise bail laws to ensure they are fair and equitable for all individuals, regardless of socio-economic status. Consider amendments to address systemic issues contributing to the high undertrial population.
• The Supreme Court recommends the enactment of special bail legislation akin to the Bail Act of the UK.
  • This legislation would establish a general right to bail and define clear criteria for bail decisions. It aims to reduce reliance on monetary bonds and sureties.
• Legal aid and support should be provided to undertrial prisoners for bail compliance and court appearances.
• Ensure safeguards against arbitrary arrest are inclusive and accessible to all individuals, particularly those from disadvantaged backgrounds.
• Establish support programs to assist undertrials in meeting bail conditions, including access to legal aid, financial assistance, and social support services.
• Foster collaboration among government agencies, legal institutions, civil society organisations, and community groups to develop holistic approaches to bail reform.
• Establish mechanisms for ongoing monitoring and evaluation of bail reform initiatives to assess their effectiveness and identify areas for improvement.

Legal Insights: Satender Kumar Antil Case

https://www.drishtijudiciary.com/en