The fundamental objective of judicial administration is to establish uniformity and certainty in the decisions of the court, which fosters legitimacy in the legal system. When persons accused of the same offense are treated differently by the courts, this violates Article 14 and 15 of the Indian Constitution which guarantees equality before law and prohibits discrimination. As the Supreme Court of India has insisted, legislation which promotes uniformity in the grant of bail is necessary to avoid differential treatment of this kind, which threatens the right to protection of life and personal liberty guaranteed by Article 21.
Diagnosing the problem
As opined by the Supreme Court of India (‘the Court’) in the 2022 case of Satender Kumar Antil v Central Bureau of Investigation, “the jails in India are flooded with undertrial prisoners though the rate of conviction in criminal cases in India is abysmally low” (para 5 and 67). This pressing reality underscores that there is an immediate necessity for comprehensive reforms in India’s criminal justice framework to address the disproportionate number of undertrial prinsoners and ensure a more equitable and efficient process for individuals involved.
Indeed, the Former Chief Justice of India, DY Chandrachud, observed reluctance by Trial courts in granting bail to an accused, which aggravates the problem of raising bail cases to higher courts. Such observations, inside and outside the courtroom, direct attention towards the need to reform the bail jurisprudence in India.
Furthermore, there is a lack of consistency in bail conditions stated across different courts. In Arvind Patel v State of Madhya Pradesh, the Court granted bail on condition that the accused had to purchase and install a black coloured LED T.V. for at least Rs. 25,000/- in a certain hospital together with photographs showing such compliance. In Vikram v State of Madhya Pradesh, one of the conditions to the bail was to visit the complainant’s home with a box of sweets and tie Rakhi thread by keeping a promise to protect her, and tender Rs.11,000/- as a customary ritual usually offered by the brothers to sisters on such occasions and seek her blessings. The imposition of such conditions by the courts has little or no nexus with the objective of granting bail: to secure the ends of justice.
Towards a uniform approach to bail
To streamline bail laws, the Court urged the Government of India to consider drafting specific bail legislation like that prevailing in the United Kingdom (UK) and various states in the United States of America. For example, Section 4(1)of the Bail Act, 1976 of the UK, the Court said, considers “the principles of law on the presumption of innocence and the grant of bail as a matter of right” (para 70). In contrast, the Indian legal framework lacks such specific provisions or adequate guidance, often leaving bail decisions to individual judges, leading to inconsistent outcomes.
The UK Bail Act considers numerous factors in determining whether to grant bail by following a simple procedure. It considers overcrowding of prisons due to a high number of undertrial prisoners, the grant of bail in specific conditions such as before and after conviction, the circumstances under which warrants are issued, the extent of discretion exercised by the investigating agencies and courts, and the consequences of infringing bail conditions. Additionally, it emphasises the execution of bonds and sureties by affirming the principle of presumption of innocence and the right to bail. Hence, the Court believed a similar enactment is required in India.
In 2024, following up on its 2022 judgment, the Court asked the Central Government if any legislation was in progress specifically dealing with the bail as recommended in the judgment. It was observed that investigating agencies reflect a colonial mindset, prioritising the power to arrest rather than acknowledging the liberty of an individual. This violates the well-recognized principle that “Bail is the rule and Jail is the exception” which has been repeatedly acknowledged in judgments affirming the right to protection of life and personal liberty guaranteed by Article 21, such as in the 2024 case of Manish Sisodia v Directorate of Enforcement (para 53).
Conclusion
There is a need for bail legislation in India that will regulate the grant and conditions of bail that maintain uniformity in decision-making that will further ensure fairness and reduce disparities in bail outcomes. It will reduce the overcrowding of prisons with undertrial prisoners and will act as a torchbearer to provide direction while applying a judicial mind in securing the ends of justice. Such judicial efficiency and trust in the judiciary are necessary for the strength of India’s criminal justice system.