Today's Editorial - 03 August 2022
The bail law and Supreme Court call for reform
Source: By Apurva Vishwanath: The Indian Express
On 11 July 2022, the Supreme Court underlined that “there is a pressing need” for reform in the law related to bail and called on the government to consider framing a special legislation on the lines of the law in the United Kingdom.
What is the ruling about?
A two-judge Bench comprising Justices Sanjay Kishan Kaul and M M Sundaresh issued certain clarifications to an older judgment delivered in July 2021 on bail reform (Satender Kumar Antil vs CBI). The 85-page ruling on 11 July 2022 is essentially a reiteration of several crucial principles of criminal procedure.
Referring to the state of jails in the country, where over two-thirds lodged are undertrials, the Supreme Court underlined that arrest is a draconian measure that needs to be used sparingly.
“Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less. They are not only poor and illiterate but also would include women. Thus, there is a culture of offense being inherited by many of them,” the court said.
Theoretically, the court also linked the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset. The Code of Criminal Procedure (CrPC) was first drafted in 1882 and continues to be in use with amendments from time to time.
“Our belief is also for the reason that the Code as it exists today is a continuation of the pre-Independence one with its modifications,” the Court said.
What is the law on bail?
The CrPC does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’. The CrPC empowers magistrates to grant bail for bailable offences as a matter of right. This would involve release on furnishing a bail bond, without or without security. Non-bailable offences are cognisable, which enables the police officer to arrest without a warrant. In such cases, a magistrate would determine if the accused is fit to be released on bail.
And what is the UK law?
The Bail Act of the United Kingdom, 1976, prescribes the procedure for granting bail. A key feature is that one of the aims of the legislation is “reducing the size of the inmate population”. The law also has provisions for ensuring legal aid for defendants.
The Act recognises a “general right” to be granted bail. Its Section 4(1) raises the presumption of bail by stating that the law applies to a person who shall be granted bail except as provided in Schedule 1 to the Act.
For rejecting bail, the prosecution must show that grounds exist for believing the defendant on bail would not surrender to custody, would commit an offence while on bail, or would interfere with witnesses or otherwise obstruct the course of justice; unless the defendant must be detained for his own welfare or protection; or in other circumstances.
What has the Supreme Court held on reforms?
The court’s ruling is in the form of guidelines, and it also draws the line on certain procedural issues for the police and judiciary.
SEPARATE LAW FOR BAIL: The court underlined that the CrPC, despite amendments since Independence, largely retains its original structure as drafted by a colonial power over its subjects. The court made this point to signal that despite its rulings, structurally, the Code does not account for arrest as a fundamental liberty issue in itself.
It also highlighted that magistrates do not necessarily exercise their discretionary powers uniformly.
“Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation. Persons accused with same offense shall never be treated differently either by the same court or by the same or different courts. Such an action though by an exercise of discretion despite being a judicial one would be a grave affront to Articles 14 and 15 of the Constitution of India,” the Court said.
The court’s solution on this is the framing of a separate law that deals with the grant of bail.
INDISCRIMINATE ARRESTS: The court noted that the culture of too many arrests, especially for non-cognisable offences, is unwarranted. It emphasised that even for cognisable offences, arrest is not mandatory and must be “necessitated”.
“Such necessity is drawn to prevent the committing of any further offense, for a proper investigation, and to prevent him/her from either disappearing or tampering with the evidence. He/she can also be arrested to prevent such person from making any inducement, threat, or promise to any person according to the facts, so as to dissuade him from disclosing said facts either to the court or to the police officer. One more ground on which an arrest may be necessary is when his/her presence is required after arrest for production before the Court and the same cannot be assured,” the court said.
It held that lower courts must satisfy that these conditions are met and “Any non-compliance would entitle the accused for grant of bail”.
BAIL APPLICATION: “There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code,” the court held.
These sections relate to various stages of a trial where a magistrate can decide on release of an accused. These range from power of the magistrate to take bond for appearance (Section 88) to power to issue summons (Section 204). The Supreme Court held that in these circumstances, magistrates must routinely consider granting bail, without insisting on a separate bail application.
DIRECTION TO STATES: The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests. The CBI has already communicated earlier orders of the Court to special judges under its jurisdiction.
“We do feel that this would certainly take care of not only the unwarranted arrests, but also the clogging of bail applications before various Courts as they may not even be required for the offences up to seven years,” the court said.