Ineffectiveness of India’s bail system

GS Paper II

News Excerpt:

The Supreme Court (SC) of India recently acknowledged, in Satender Kumar Antil vs CBI case, the ineffectiveness of India’s bail system and its contribution to this crisis of Indian criminal justice system.

What has SC said?

  • The Court noted that despite repeated guidelines on bail law, things have not changed on the ground. 
  • The Court provided comprehensive guidelines on laws related to bail, such as 
    • Mandating timelines for the disposal of bail applications and 
    • Laying emphasis on the need to enact a separate legislation.
  • The SC noted that crowding jails with undertrial prisoners ignored the principle of ‘presumption of innocence’ and that ‘bail not jail’ should be the norm.

How can bail laws be reformed?

  • There is an urgent need for bail reform but it would be counterproductive to undertake a reform exercise without first developing the empirical basis to understand and diagnose the problem at hand.
  • Any assessment of the law on bail needs to first understand the exact nature of the problem that results in large-scale undertrial incarceration.
  • This assessment needs to be based on multiple parameters and we have no real empirical evidence on how each of these impacts the issue, such as: - 
    • What proportion of undertrials are applying for bail? 
    • What proportion of bail applications are accepted or rejected, and on what grounds? 
    • Is bail compliance a far bigger problem than denial of bail?
  • An effective bail law must be based on the correlation of these answers with variables such as the demographics of undertrials, category of offences and timelines for bail, and also address socio-economic and structural barriers. 
  • The foundations of the current bail law ensure that it is anti-poor and disproportionately burdens those from marginalised backgrounds. 
    • The solutions we intend to craft must be based on a deep and realistic understanding of the problem.

Major areas of improvements in bail laws:

  • Lack of safeguards: The Court stated that effective enforcement of safeguards against arbitrary arrest would eliminate the need to seek bail from courts.
    • These safeguards exclude a significant proportion of arrested persons, especially those from disadvantaged sections of society, who form the large majority of undertrial prisoners. 
    • Data from the Fair Trial Programme (FTP) in Yerwada and Nagpur central prisons can be instructive here. 
        • 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.
  • Approach to bail adjudication: The power to grant bail is largely based on the court’s discretion and depends on the facts of each case. 
    • The Supreme Court has time and again laid down principles for guiding the exercise of such discretion by courts in deciding bail applications. 
    • While these guidelines lay stress upon the need to release applicants on bail, they also validate the denial of bail or imposition of onerous bail conditions based on the gravity of the offence, character of the accused and likelihood of the accused absconding or tampering with evidence. 
  • Challenges in bail compliance: A large number of undertrials continue to remain in prison despite being granted bail due to challenges in complying with bail conditions. 
    • Lack of means to arrange for money/property and local sureties are the most significant reasons accounting for an undertrial’s inability to comply with bail conditions.
    • Lack of residence and identity proof, abandonment by family and limitations in navigating the court system also undermine an undertrial’s ability to comply with bail conditions.
        • In 14% of cases, undertrials were unable to comply with bail conditions and remained in prison despite being granted bail. 
        • In almost 35% of these cases, it took over a month after obtaining the bail for undertrials to comply with bail conditions and secure their release.
  • Flawed assumptions: The bail system, as it currently operates, has flawed assumptions that every arrested person will be propertied or have access to propertied social connections.
    • It presumes that the risk of financial loss is necessary to ensure the presence of the accused in court. 

Way Forward: To address the ineffectiveness of India's bail system, following reforms can be considered:

  • Empirical Assessment: Conduct a thorough empirical study to understand the reasons for undertrial incarceration, including the proportion of bail applications, acceptance rates, and compliance challenges.
  • Legislative Reform: Enact a separate legislation for bail that mandates timelines for bail application disposal and emphasizes the 'bail not jail' principle.
  • Safeguards Against Arbitrary Arrest: Ensure effective enforcement of safeguards against arbitrary arrest to reduce the need for seeking bail.
  • Guidelines for Bail Adjudication: Provide clear guidelines for courts to exercise discretion in bail decisions, balancing the gravity of the offense, character of the accused, and likelihood of absconding or tampering with evidence.
  • Address Compliance Challenges: Address challenges in complying with bail conditions, such as lack of means to arrange for money/property and local sureties, by providing support and assistance to undertrials.
  • Socio-Economic Considerations: Consider socio-economic factors in bail decisions and provide support to underprivileged individuals to comply with bail conditions.
  • Public Awareness and Legal Aid: Increase public awareness about bail laws and provide legal aid to undertrials to navigate the legal system effectively.
  • Regular Monitoring and Evaluation: Establish a system for regular monitoring and evaluation of bail laws to ensure effectiveness and identify areas for further improvement.


Reforming India's bail system is imperative to address the systemic issues plaguing its criminal justice system. Through empirical assessment, legislative reforms, and safeguards against arbitrary arrest, the bail process can be made more efficient and fair. By considering socio-economic factors and providing support to underprivileged individuals, the system can uphold the principle of 'bail not jail' while ensuring public safety and adherence to the law.


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