Context: The Supreme Court asked judges to protect personal liberty and the right of ordinary people to bail.

Key takeaways from the SC judgement:

  • Undertrials: Common citizens without the means or resources to move the High Courts or the Supreme Court were languishing in jails as undertrials.
    • Undertrials remained behind bars while their bail applications were lobbed from one rung of courts to another. 
    • Courts were the “first line of defence” against the deprivation of citizens’ personal liberty. 
  • Importance of bail: It is through the instrumentality of bail that our criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression.
    • The primary purpose of bail is to ensure the accused person’s compliance with investigation, and subsequent presence at the trial if they are released after arrest. 
    • The refusal to grant bail deprives individuals of liberty by confining them in jails without trial and conviction.
  • Pending bail pleas: The SC highlighted that 91,568 bail pleas were pending in High Courts, while 1.96 lakh bail applications were pending in the district courts. 
  • Importance of the district judiciary: The district judiciary was only “subordinate” in hierarchy. 
    • The district judiciary must be alive to the situation as it prevails on the ground – in the jails and police stations where human dignity has no protector.
  • Liberty survives by 
    • the vigilance of her citizens and the media and 
    • in courts alive to the rule of [and not by] law. 
    • Liberty is a casualty when one of these components is working improperly.
  • Arnab Goswami case: It declared that the “doors of the Supreme Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponised for using the force of criminal law. 
    • It said the High Court did not take into account the “disconnect between the FIR and the provisions of Section 306 IPC [abetment to suicide]”. 
    • Duty of High Court: The High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of State power.

Undertrials in India-NCRB report

  • While undertrials in Indian prisons increased from 67 per cent in 2015 to 69 per cent in 2019, capacity in jails increased by 1.9 per cent during this period, according to 2017 data on jails released by the National Crime Records Bureau (NCRB).
  • It says there are more than 3 lakh cases pending investigations for more than one year.
  • The report says in more than 40% of cases with fast-track courts, these courts have taken more than three years to finish the trial. 
  • Of the 38,000-odd cases that fast-track courts completed in 2017, over 4,500 cases had been running for 5-10 years. 
  • In only around 11,500 cases was the trial completed within one year.
  • In courts as a whole, 2,71,779 cases were pending trial at the end of 2017.

Concerns: The refusal to grant bail deprives individuals of liberty by confining them in jails without trial and conviction

  • Judicial discretion

    • The power to grant bail is a discretionary power vested in judges and it is meant to be exercised liberally. 
    • Subordinate courts routinely reject bail for specific offences like minor excise offences. 
  • Marginalised communities: Two-thirds of India’s prison population comprise undertrials from Dalit, Adivasi and Other Backward Classes communities, often accused of minor offences.
  • Pendency of bails: The accused persons are required to approach the High Court or the Supreme Court in case of rejection by the subordinate courts. Consequently, most accused persons remain incarcerated as undertrials for extended periods of time. 
    • The pendency of bail applications has particularly increased during the pandemic — both due to the shutting down of courts and the exacerbation of arrests for minor offences by the police. 
  • High bail amounts:
    • A bail typically requires sureties to furnish a bond for some property valued at the amount determined by the concerned judge. 
    • The bail amount in subordinate courts, even for petty offences punishable by less than three years, is a minimum of ₹10,000. In cases of bail before the High Courts and the Supreme Court, this amount usually exceeds ₹30,000. 
    • This is a form of injustice when a majority of citizens are landless with meagre incomes.
    • Official data from the Socio-Economic Caste Census pegs rural landlessness at 57%.
    • Therefore, those without assets, even when granted bail, end up languishing in jails or incur debt by paying others to stand as fake sureties to secure their freedom. 
    • A bogey of middlemen has also emerged due to these high bail amounts. 
  • Preposterous Bail conditions

    • Bail indiscretions by judges of lower courts and High Courts have passed by with little accountability or oversight by the apex court. 
    • Courts introspect little about standards of liberty, reasonableness and proportionality when deciding bail matters. 

Way forward: Bail reform must begin by addressing two key facets of the criminal justice system: judicial discretion and monetary surety bonds.

  • In the 1978 Supreme Court case of Moti Ram v. State of Madhya Pradesh, the court identified the issue of unreasonably high sureties as a human rights problem. 
    • The court then suggested that surety amounts be determined by considering relevant variables such as the socio-economic location of the accused person.
  • Addressing judicial discretion: A report by the Centre for Law and Policy Research recommends the creation of checklists to address individual discretion while deciding bail applications.
  • The grant of bail on a personal bond without sureties i.e., release on one’s own guarantee without any monetary amounts, although permissible in law, is rare.It should be in frequent practice.

Image source: ToI