Recently, the Supreme Court of India expressed the pressing need for reform in bail laws and suggested the government ponder framing a special law similar to the United Kingdom’s legislation. This call for reform highlights the problems of indiscriminate arrests, which significantly contribute to overcrowded jails across the country, and the need for reforms in policing and granting bail alongside constitutional protection.
The Ruling and Its Context
The latest ruling by a two-judge Bench offers some clarifications on an earlier bail reform judgment delivered in July 2021 (Satender Kumar Antil vs CBI). It reiterated several essential criminal procedure principles. The Supreme Court underscored that the practice of arrest should be exercised judiciously, given the state of overpopulated jails in India, where undertrials make up over two-thirds of the prison population. The court also criticized the prevalent buckle-and-thong culture, attributing it to a colonial mindset that disregards the guiding principle of “bail, not jail.”
Understanding the Law on Bail in India
The Code of Criminal Procedure (CrPC), first drafted in 1882 and amended over time, categorizes offenses under the Indian Penal Code as ‘bailable’ and ‘non-bailable.’ However, it leaves the term ‘bail’ undefined. For bailable offenses, magistrates can grant bail as a right, contingent on the accused providing a bail bond. Non-bailable offenses are cognizable, allowing police officers to arrest without a warrant. It is at the magistrate’s discretion to decide whether the accused is appropriate for release on bail in non-bailable offenses.
The Bail Law in the United Kingdom
The UK’s Bail Act of 1976 sets out the bail granting procedure, aiming to reduce the inmate population size. The Act establishes a “general right” to be granted bail, with exceptions provided in Schedule 1 to the Act. The prosecution must demonstrate grounds for denying bail based on several factors, including the defendant’s potential for reoffending or obstructing justice.
The Supreme Court’s Views on Reforms
The Supreme Court expressed concerns over the original structure of CrPC that seemed more suited to colonial rule than modern governance, arguing that the Code does not sufficiently address ‘arrest’ as a significant matter of fundamental liberty. It also pointed out the problematic lack of uniformity in magistrates’ exercise of discretionary powers, calling for a separate law specifically addressing bail grants. The court also expressed concerns over the culture of unnecessary arrests and demanded prerequisites before making an arrest.
Legal Framework for Criminal Jurisprudence in India
The Indian Penal Code (IPC) is the official criminal code of India established in 1860, and the Code of Criminal Procedure (CrPC) administers substantive criminal law procedure. They were created to ensure that laws are applied consistently and impartially across the nation.
Constitutional Protection Against Indiscriminate Arrest
Articles 20, 21, and 22 of the Indian Constitution provide protection against indiscriminate arrests, ensuring individuals’ rights to fair trial, life, and personal liberty. They protect individuals from being convicted of offenses that weren’t legally defined at the time of their commission and guarantee their right to legal representation and trial within a reasonable timeframe.
Suggestions for Improvement
Recommendations for improvements include increasing police personnel awareness about laws, adding a higher number of police stations based on complaint volume, including social workers and psychologists in the criminal justice system, focusing on victims’ rights, and studying conviction rates among police officials. The Supreme Court strongly advocates for drafting a separate law on bail to better manage undertrial cases in the country.
