The need for bail legislation in India

Bail jurisprudence in India is in dire need of reform, as is evident from the recent judgments of the Supreme Court and the observations made by its judges.

In the 2022 case Satender Kumar Antil v. Central Bureau of Investigation, the Supreme Court urged the Central government to consider introducing a legislation in the nature of a Bail Act to streamline the grant of bail, much like the United Kingdom’s Bail Act, 1976. In another case the same year, Ms Y v. State of Rajasthan, a Bench headed by then Chief Justice of India NV Ramana deprecated the recent trend of courts passing bail orders without underlining the specific reasons that factored in its decision.

More recently, while hearing a challenge in connection with the 2020 North-East Delhi riots against the grant of bail to three accused under the Unlawful Activities (Prevention) Act, 1967, the Supreme Court opined that it did not believe in unnecessarily keeping people behind bars, and lamented the lengthy hearings and judgments plaguing bail applications.

One must also take note of the words of Chief Justice of India DY Chandrachud, who, while speaking at a felicitation ceremony organized by the Bar Council of India, attributed a sense of fear in trial court judges to their reluctance to grant bail, which in turn has contributed to the higher courts being flooded with bail matters.

These observations, inside and outside the courtroom, point to the changing views of the bench with regard to reform in the area of bail jurisprudence.

Bail, not jail

Back in 1977, ‘bail, not jail’ was the rule. It was based on the presumption of innocence of the accused and the Fundamental Right to personal liberty: that every accused must be proven to be guilty of the offence they are charged with, beyond any reasonable doubt, and till that time, a presumption of innocence is cast on such person.

The presumption of innocence has its genesis in the Universal Declaration of Human Rights, which India is a signatory to. Moreover, Black’s Law Dictionary defines an accused as "the generic name for a defendant in a case, more appropriate than “prisoner”," indicating that innocence is presumed when addressing an accused.

However, statistical information on Indian prisoners proves otherwise. According to the National Crime Records Bureau, as on December 31, 2021, 77.1 per cent of all prisoners were registered as undertrials, a Kafkaesque scenario where the presumed-innocent outnumber the proven-guilty by three to one. Under these circumstances, it is not surprising that such a vast number of bail applications are filed before the various courts in the country.

The granting of bail

During the investigation stage, an accused may be detained in custody at the discretion of the concerned court. In the absence of a legislation guiding the grant of bail, this discretion leaves room for arbitrariness in the grounds considered by courts while not only deciding bail applications, but also while imposing conditions for bail. All this further leads to piling up of appeals before the higher courts.

Consider the following.

In the 2020 case P Chidambaram v. Directorate of Enforcement, the Delhi High Court accepted that the accused was not a flight risk, was facing medical problems and that there was no possibility of witness or evidence tampering by him. However, the Court went on to refuse bail since the accusations were of an economic nature pertaining to corruption and money laundering, and that "grant of bail would not send the right message to the larger public."

Upon appeal, however, the Supreme Court granted bail on the very same grounds that the High Court had accepted despite refusing bail. Thus, while both the High Court and Supreme Court agreed that the accused was neither a flight risk, nor would he tamper with the evidence, those grounds were not convincing enough for the High Court to grant him bail, while they were for the Supreme Court to do so.

This case study indicates how uncontroverted facts and circumstances may lead to differing conclusions by different courts, especially in bail matters. It also illustrates how matters can become more complex since the decisions of either court could not be faulted for arbitrariness or for being in ignorance of settled principles.

Clearly, in the absence of well-defined guidelines streamlining the grounds for or against bail, judicial discretion can lead to different courts - and indeed different judges of the same court - arriving at different conclusions on identical facts and circumstances, inevitably resulting in a greater number of challenges against such orders.

Arbitrariness in bail conditions

A court, while granting bail to an accused suspected of the commission of a non-bailable offence, may impose any condition for bail as it considers necessary in the ‘interests of justice’ - which has been interpreted as ‘good administration of justice’ or ‘advancement of the trial proceedings’ - and a wider meaning ought to be shunned. It goes without saying that a level of judicial discretion is involved in the imposition of bail conditions. However, there has been a recent trend of imposition of arbitrary bail conditions, without exercise of jurisdiction in a reasonable manner.

Consider the following examples.

In 2020, the High Court of Madhya Pradesh granted bail to an applicant accused of attempt to murder on the condition that he shall install a ‘black LED television’ costing at least ₹25,000 and manufactured anywhere but in China, in a certain hospital in his district. Further, the order obligated the accused to submit a report along with photographs pertaining to his compliance with the Court.

In another 2020 order, the Madhya Pradesh High Court granted bail to an undertrial accused of offences under the Protection of Children from Sexual Offences (POCSO) Act, 2012, imposing the condition that he shall deposit a sum of ₹2,500 with the PM Cares Fund, and further, enrol himself under the ‘Covid-19 Warriors Register’ maintained with the District Magistrate, who would assign him Covid-19 disaster management tasks. An additional condition imposed was to plant one sapling of a tree – fruit-bearing or neem and peepal. The order further required the trial court to submit a compliance report every three months, while also stating that default would disentitle the accused from the benefit of bail.

Further, in another bail order of August 2020, the Madhya Pradesh High Court granted bail to one accused of voluntarily causing grievous hurt, on the condition that he shall stay off WhatsApp, Facebook and other social media apps for a period of two months. The order stipulated that the condition was part of mandated ‘digital detoxification’ of the applicant, with the accused directed to submit a status report every month to the concerned police station.

We can see from the examples discussed above how the conditions of bail being imposed vary wildly from one court to another, without much uniformity or consistency in its application. Further, often, the conditions have very little or no nexus at all with the intended good administration of justice or with advancing the trial process. Often, these conditions can be deemed onerous, bordering on harassment for the accused, who is still presumed innocent at the time of complying with such conditions. Also, the social-justice aspect or ethical value in such orders is largely subjective, based on, of course, the case specificities as well as the perception of the bench. However, such orders become binding precedents to be followed by the lower courts, an unpleasant fallout.

The need for bail legislation

We have discussed earlier in the piece how the Supreme Court seems to be voicing the need for bail legislation to enable the quick and effective grant of bail and dispense with the onerous conditions imposed on the same. The Court drew heavily from judgments of the Supreme Court of Canada, besides examining provisions of the United States’ Bail Reforms Act, 1966, and the United Kingdom’s Bail Act, 1976, to buttress its views.

The 1976 Bail Act provides precise conditions pertaining to the grant of bail. It classifies the non-compliance of bail conditions and the act of absconding by a person to whom bail is granted, as separate offences. The Act further categorizes offences based on whether they are imprisonable or non-imprisonable in nature, while also providing exceptions to the right of bail for certain categories of persons. The provisions of this Act, adapted appropriately to the Indian context, could be considered while drafting bail legislation of our own.

Conclusion

To summarize, the necessity of a bail legislation which would statutorily streamline the grant of bail and imposition of appropriate bail conditions can hardly be overstated, given the fact that a great majority of prisoners in India are undertrials. Considering the circumstances and the cases discussed above, such an enactment would see the following benefits:

1. A legislation on bail would limit and may even nullify discretion altogether in deciding bail applications;

2. In the absence of discretion, there would be consistency in the jurisprudence regarding bail;

3. With consistency in the law, advice given by advocates to litigants would also be guided and specific, therefore reducing filing of frivolous bail applications;

4. The scope for filing appeals against bail orders by the aggrieved parties would also be narrow, if at all;

5. The scope for pecuniary corruption in deciding bail matters would also be negated, since the guidelines in such legislation would have to be strictly applied to the facts and circumstances of the case before it; and

6. As a result of the above, the massive backlog of bail applications currently pending adjudication would also clear up, freeing up the dockets of our higher courts, and enabling them to exercise jurisdiction over Constitutional matters.

In sum, inarguably, judicial discretion plays a huge role in not only deciding the grant of bail, but also in imposing conditions for the same. Reinvigorating new bail legislation would limit such discretionary power by providing a proper framework and well-defined guidelines to function within and thus ultimately limit the uncertainty that plagues bail matters.

Chetan Lokur is an advocate practicing in Delhi and Abhijit Singh is a second year LL.B. Student at the Jindal Global Law School.