Abstract
Indian bail system is part of the criminal justice system based on the notion that an accused must be presumed to be innocent until he is convicted. The law relating to bail has evolved over a period of time by virtue of legislative enactments and liberal judicial pronouncement. Since guarantees of ease against arbitrary detention are offered under the Constitution and law, practice in the application of bail provisions is plagued by inconsistencies. These are because of a mix of factors—procedural complexity, socio-economic imbalance, and variance in the conceptions of judicial discretion. The result is availability of bail in India often determined not on the basis of the case strength but on the basis of the accused’s background and resources. The Indian bail system in this essay is analyzed critically, with a preview of its constitutional base, important statutory provisions, and judicial role in determining its application. It also discusses issues of present interest, like the status of the undertrial prisoner, the effect of special laws on entitlement to bail, and problems emanating from a lack of uniform guidelines. The article also takes into account recent utterances by judges and other recent reform efforts towards more equal and uniform bail proceedings.
Adopting a doctrinal and analytical approach, the research advocates a reformed, open, and principle-based bail system that ensures the constitutional promise of justice, equality, and personal freedom. It concludes with pragmatic recommendations with the aim of making the right to bail an achievable promise and not an influence-and-money-based privilege.
Keywords: Bail Jurisprudence, Criminal Justice Reform, Judicial Discretion, Pretrial Detention, Constitutional Rights
Introduction
Bail is part of the criminal justice system as a way of preserving the freedom of pre-trial detainees and bringing them into the courts. Bail is a consequence of the underlying principle of criminal law—presumption of innocence until guilt is proven through due process[1]. Bail is not a concession of innocence but a balancing of the right to liberty against interests of justice and public safety. In the Indian perspective, bail laws have evolved through constitutional fiat, statutory law, and judicial pronouncements. Still, despite constitutional mandates, statutory law, and judicial pronouncements, enforcement of bail is fraught with arbitrariness and inconsistency. Socio-economic divides generally decide the fate of requests for bail, as citizens belonging to weaker sections of society struggle to handle legal procedures, find sureties, or identify competent legal professionals. This causes unwarranted pre-trial detention, obliterating the very principle of justice and equality before law[2].It is also aggravated by overstrained judiciary, overcrowded prisons, and routine abuse of the arrest powers. Further, the lack of a statutory code to control bail in India, unlike the United Kingdom, causes divergent practices and excessive reliance on judicial discretion.
The word bail, traced etymologically back to the Old French baillier (to give or deliver), refers to release from detention before trial on surety or bond of an accused person[3]. Neither defined by statute in terms under the Criminal Procedure Code (Cr.P.C.) nor a statutory requirement, it is an important aspect of criminal justice, which protects constitutional rights (Parts III & IV) and human rights under international agreements. Wharton’s Lexicon explains bail as to set at liberty a defendant in the custody of sureties who undertake his appearance in court. Vaman Narain Ghiya v. State of Rajasthan[4] was lodged in bail as right of personal liberty against the coercion of the state. Bharatiya Nagarik Suraksha Sanhita (BNSS) Section 2(b) states “bail” means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond[5].
Since the Universal Declaration of Human Rights (1948), bail has been established as a human right. Bail is an intersection of state power and community involvement in justice by releasing the suspect into society with the assurance of showing up in court. Bail basically balances individual freedom against legal duty to avoid too much pre-trial incarceration[6].
The Bharatiya Nyaya Sanhita, 2023 (BNS) introduces revised provisions regarding bail, which overrides the equivalent provisions of the Code of Criminal Procedure, 1973 (CrPC). It classifies bail into the following categories: Regular Bail: Under Sections 479 and 483 of the BNS (previously Sections 437 and 439 of the CrPC), regular bail is released after an arrest of the accused person and while they are in custody. It is mostly for both bailable and non-bailable offenses, depending on the discretion of the court as well as the nature of the offense. Anticipatory Bail: A Section 482 of the BNS (formerly Section 438 of the CrPC), anticipatory bail is an anticipatory judicial relief that is extended to an individual who is apprehending arrest in a non-bailable offence. It is a provision that allows an individual to request protection from arrest even before the framing of charges or registering an FIR. Interim Bail: It is an intermediate type of bail that is allowed to an accused until final disposal of a routine or anticipatory bail application. It is usually granted not to arrest the person right away while the court is deliberating the primary bail application[7].
[1] De Haas, E. (1945)
[2] Pooja Amaravathi & Ananya Mishra, The Presumption of Innocence and its Role in the Criminal Process, 4(3) IJLMH 1135, 1135-1149 (2021).
[3]Chhapola, T. (2024)
[4] AIR 2009 SUPREME COURT 1362, 2009 (2) SCC 281
[5] BNSS: New Terms, ManupatraAcademy..
[6] Mansoor, H. S. (2020).
[7] Bhardwaj, A. (2024).