Editorial: Time for bail law

In a country where inordinate delays in the justice delivery system force undertrials to languish in jails for years and even those granted bail must wait till the court order reaches the jail authorities by post, the urgency of reforms need not be overemphasised. A key component of reforms concerns changes in bail provisions. In this context, the Supreme Court’s suggestion to enact a legislation specifically meant for the grant of bail, similar to the one in vogue in the United Kingdom, deserves serious consideration and a wider national debate. More than two-thirds of the inmates of the prisons in the country are undertrial prisoners. Of this, the majority may not even be required to be arrested. The indiscriminate arrests and imprisonment of the accused stem from the colonial era Code of Criminal Procedure (CrPC) which was first drafted in 1882 and continues to be in use with some amendments from time to time. The CrPC does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’. Non-bailable offences are cognisable, which enables the police to arrest without a warrant. In such cases, a magistrate would determine if the accused is fit to be released on bail. Despite some amendments since Independence, the CrPC largely retains its original structure as drafted by a colonial power over its subjects and does not account for arrest as a fundamental liberty issue in itself. And, the magistrates do not necessarily exercise their discretionary powers uniformly.

The apex court has rightly pointed out that the culture of too many arrests, especially for non-cognisable offences, is unwarranted and emphasised that even for cognisable ones, the arrest should not be mandatory. Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation. Persons accused of the same crime should never be treated differently either by the same court or by the same or different courts. The SC made it clear that bail applications should be disposed of within two weeks and pleas for anticipatory bail should be decided within six weeks. The abysmally low rate of conviction in criminal cases appears to weigh on the mind of the magistrates while dealing with bail applications and in most cases, the bail pleas are rejected. It must, however, be pointed out that bail is a fundamental aspect of any criminal justice system and the practice of bail grew out of the need to safeguard the fundamental right to liberty. In fact, bail is a rule and jail is an exception. Unfortunately, a majority of undertrials, languishing in jails for years, are so poor that they cannot afford to seek bail. The sub-human conditions in several prisons often drive many undertrials to commit suicide. The cramped conditions in jails militate against prisoners’ right to good health and dignity.