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Meaning of the word Bail

Bail is a generic term used to mean judicial release from custodia legis. The concept of bail

can traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. Themodern bail system evolved from a series of laws originating in the middle ages in England.

Law Lexicon has defined it as, security for appearance of the accused person on giving

which he is released pending trial or investigation.

Blacks Law Dictionary contemplates that bail is to procure the release of a person from

legal custody, by undertaking that he shall appear at the time and place designated and submit

himself to the jurisdiction and judgement of the court.

The Law of Bail has to dovetail two conflicting demands, namely, on one hand the

requirements of the society for being shielded from the hazards of being exposed to the

misadventures of a person alleged to have committed a crime, and on the other, the

fundamental cannon of criminal jurisprudence, i.e., the presumption of innocence of accused

till he is found guilty. The Legislature in the wisdom has given some precise directions for

granting, or not granting bail. Where the legislature allows discretion in the grant of bail, the

discretion has to be exercised according to the guidelines provided by law; in addition the

courts have evolved certain norms for the proper exercise of such discretion. The release on

bail is crucial to the accused as the consequences would mean that though he is presumed to

be innocent till the guilt is proved beyond reasonable doubt, he would be subjected to the

psychological and physical deprivations of jail life. The jailed accused is loses his job and is

prevented from contributing effectively to the preparation of his defence. Equally important,

the burden of his detention frequently falls heavily on the innocent members of his family. 1

The Code of Criminal Procedure, 1973 in sections 436 to 450 has laid down the norms for

granting of bail and provisions relating to security and bonds in criminal cases. The Indian

Penal Code has classified all offences as bailable or non-bailable according to the nature and

gravity of offence, Section 2(a) specifies that bailable offence means an offence which is

shown as bailable in the First Schedule or which is made bailable by any other law for the

time being in force and non bailable means any other offence. Thus no test or criterion is

laid down however, it can be said generally that all serious offences punishable with

1 R.V.Kelkars Criminal Procedure, Fourth Edition, 2007.

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imprisonment for three years or more, have been considered as non bailable offences. 2 In non

bailable cases, accused may be released on bail but no bail shall be granted where the accused

appears on reasonable grounds to be guilty of an offence punishable with death or

imprisonment of life. However, this rule does not apply to: a) persons below sixteen years of

age b).Women and c).Sick or Infirm persons and the Sessions Court and the High Court have

been given the discretion to grant bail in such cases. As soon as the reason for detention

ceases the accused should be released on bail or on his own recognizance. When released on

bail the order with reasons shall be in writing and as soon as bail bond is executed, the

accused is entitled to be released from custody.3 Even as per the Law Commission the broad

principles are that, bail is a matter of right if the offence is bailable4, a matter of discretion is

the offence is not bailable and it shall not be granted in where the accused appears on

reasonable grounds to be guilty of an offence punishable with death or imprisonment of life

as stated above.5

As per Supreme Court, bail covers both release on ones own bond with or without sureties

and the questions regarding the amount of every bond with a surety, executed under the

Chapter XXXIII of the Code shall depend on variables, such as:6

ability of the accused to give bail,

nature of offense,

penalty for the offense charged,

character and reputation of the accused,

health of the accused,

character and strength of the evidence,

probability of the accused appearing at trial,

forfeiture of other bonds, and

whether the accused was a fugitive from justice when arrested.

2 R.V.Kelkars Criminal Procedure, Fourth Edition, 2007.3 The Code of Criminal Procedure Rattanlal and Dhirajlal, 17th edition, reprint 2007.4

As per Section 436, Code of Criminal Procedue, 1973.5 Law Commission of India, 41st Report on Code of Criminal Procedure, Vol. 1,311.6 Article - Indian System of Bail- Anti Poor by Urvashi Saikumar, Amity Law School.

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That the accused is under bond for appearance at trial in other cases should also be

considered.

The amount of bond should be an individualised decision, fixed mechanically according to

the schedule keyed to the nature of charge.7The High Court or Sessions Court may direct that

the bail required by a police officer or magistrate be reduced.8

However it is important to note that, since bail includes both release on ones own bond

without sureties i.e. personal recognizance or with surety, the Courts must be liberal in

releasing the poor, young or infirm persons and women on their own personal recognizance,

putting reasonable conditions if necessary.9

Object of Bail

The object of arrest and detention of accused person id primarily to secure his presence at

the time of inquiry, trial or investigation and to ensure that in case he is found guilty he is

available to receive the sentence. If his presence can reasonably be ensured otherwise than by

arrest and detention it shall be unfair n unjust to deprive the accused of his liberty during the

pendency of criminal proceedings against him. Thus all the provisions of the code are aimed

at ensuring no unreasonable and unjustifiable interference with the liberty of the person so

accused.10 Even the Universal Declaration of Human Rights is reflective of this objective

such as, Under Article 9 it is contemplated that No one shall be subjected to arbitrary arrest,

detention or exile, under Article 10, Everyone is entitled in full equality to a fair and public

hearing by an independent and impartial tribunal, in the determination of his rights and

obligations and of any criminal charge against him and under Article 11(1) Everyone charged

with a penal offence has the right to be presumed innocent until proved guilty according to

law in a public trial at which he has had all the guarantees necessary for his defense.11

Right to Bail

7 R.V.Kelkars Criminal Procedure, Fourth Edition, 2007.8 Section 440, Code of Criminal Procedure, 1973.9

Criminal Law and Criminology by A.N. Chaturvedi, 2003.10 R.V.Kelkars Criminal Procedure, Fourth Edition, 2007.11 Right to Bail as a Constitutional Right By Vidhan Maheshwari, National Law Institute University, Bhopal

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The right to bail is concommittant of the accusatorial system which favors a bail system that

ordinarily enables a person to stay out of jail until a trial has found him/her guilty. 12

As defined in the case, Suprintendent and Remembrancer of Legal Affais v. amiya

Kumar Ray Choudhary,13 the right to bail, is the right to be released from jail in criminal

cases after furnishing sufficient security and bond and this has been recognized in every

civilized society as a fundamental aspect of human right

Right to bail as a Constitutional Right:

The PREAMBLE- The Preamble to the constitution emphasizes that India is a Sovereign

Socialist Secular Democratic Republic and that is being established by the people of India

with a view to achieve Justice, social, economic and political for all citizens. The ideal inthe preamble is reinforced in the Directive Principles of State Policy. Thus the state has

directed to promote the welfare of the people by securing a social order based on social

economic and political justice. For example the state is directed to minimize inequalities in

income and eliminate the inequalities in status, facilities and opportunities not only amongst

individuals bit also among groups reading in different areas or engaged in different vocation,

it also has the duty to provide opportunities and facilities for children to develop in a healthy

manner and in conditions of freedom and dignity and so on.14

ARTICLE 21 It reads as, Protection of life and personal liberty No person shall be

deprived of his life or personal liberty except according to procedure established by law.

The release on bail is provided for with the object of protecting the right to life and liberty of

the citizens guaranteed under article 21. If granted bail without conditions, the accused has

the right to move about freely throughout the territory of India as under article 19 15 Article 21

of the Constitution is said to enshrine the most important human rights in criminal

jurisprudence. The Supreme Court has taken the view that this Article merely embodied a

facet of the Diceyian concept of the rule of law that no one can deprived of his life and

personal liberty by the executive action unsupported by law. If there was a law which

12 Right to Bail as a Constitutional Right By Vidhan Maheshwari, National Law Institute University, Bhopal13

(1974) 78 Cal. W.N. 320, 325.14 Law and the poor: Some Recent Developments in India by M.P.Jain15 Code of Criminal Procedure Dr. S.R. Myneni, 2004 Edition.

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provided some sort of procedure, it was enough to deprive a person of his life and personal

liberty.16

The case, Maneka Gandhi v. Union of India17 marked a watershed in the history of

constitutional law and Article 21 assumed a new dimension wherein the Supreme Court for

the first time took the view that Article 21 affords protection also against legislation (and not

just executive action) and no law can deprive a person of his/her life or personal liberty

unless it prescribes a procedure which is reasonable, fair and just it would be for the court to

determine whether the procedure is reasonable, fair and just ; if not, it would be struck down

as invalid. Bhagwati, J. said that the procedure under article 21 must be right and just and

fair and not arbitrary fanciful or oppressive, otherwise it would be no procedure at all and the

requirement of article 21 would not be satisfied

The new judicial approach has manifested itself in several propositions laid down by the

court in relation to the administration of criminal justice. One proposition is that a procedure

cannot be reasonable, fair or just unless it ensures a speedy trial for determination of guilt of

such person and that speedy trial is an integral and essential part of the fundamental

right to life and liberty as per article 21. Thus the procedure under which a large number of

people are behind bar for a long time cannot be regarded as reasonable just and fair so as to

be in conformity with Article 21of the constitution18

In Mantoo Majumdar v. State of Bihar19 the Apex Court upheld the under trials right to

personal liberty and ordered the release of the petitioners on their own bond and without

sureties as they had spent six years awaiting their trial, in prison. The Court deplored the

delay in police investigation and the mechanical operation of the remand process by the

magistrates insensitive to the personal liberty of under trials, and the magistrate failure to

monitor the detention of the under trials remanded by them to prison.20

In Sunil Batra v. Delhi Administration,21 Supreme court was faced with an important

question of issuing a habeas corpus writ on the basis of a letter addressed to one of the judges

of the court by one of the fellow convicts, Sunil Batra complaining of brutal assault by a head

warder on another person, Prem Chand. Since freedom was at stake and forms were forsaken

16 Right to Bail as a Constitutional Right By Vidhan Maheshwari, National Law Institute University, Bhopal17 AIR 1978 SC 59718 Law and the poor: Some Recent Developments in India by M.P.Jain19

AIR 1980 SC 84620 J. N. Pandey, Constitutional Law of India, Thirty Second Edn., Central Law Agency, Allahabad.21 AIR 1980 SC 1579

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and the letter was metamorphosed into a habeas corpus proceeding and was judicially

charged with eclectic creativity. Being convicted of the allegation the court issued a writ,

directing the authorities that the prisoner Prem Chand should not be subjected to physical

manhandling by any jail officer, that the painful and shameful torture he had been subjected

to, a blot on governments claim to protect human rights, shall be ended and he shall be

given proper medical care and treatment.

In Kadra Pehadiya n Ors. v State of Bihar 22 the Supreme Court observed that the right to

speedy trial is implicit, in the rights enshrined in Article 21 and the Court, at the instance of

an accused, who was denied this right, is empowered to give instructions to the State

Governments and to other appropriate authorities to secure this right of the accused.

ARTICLE 22(1) AND 39A

The right to bail is inextricably linked to the knowledge and awareness of the accused of his

right to obtain release on bail; this is further linked to Article 22(1) of the Constitution which

provides that no person who is arrested shall be denied the right to consult and to be defended

by legal practitioner of his/her choice. It is however remains an issue to be examined whether

this provision carries with it the right to be provided the services of a legal practitioner at

state cost, particularly in the light of Article 39A of the Constitution which directs the State to

provide free legal aid- but is this an obligation on the part of State, enforceable in a court of

law.23

Article 22 (1) reads as: Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without being informed, as soon as

may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be

defended by, a legal practitioner of his choice.

Article 39A reads as: Equal justice and free legal aid The State shall secure that the

operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in

particular, provide free legal aid, by suitable legislation or schemes or in any other way, to

ensure that opportunities for securing justice are not denied to any citizen by reason of

economic or other disabilities.

22 AIR 1982 SC 116723 Right to Bail as a Constitutional Right By Vidhan Maheshwari, National Law Institute University, Bhopal

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The right to free legal assistance is an essential element of any reasonable, fair and just

procedure for a person accused of an offence and it must be held implicit in the guarantee of

Article 21, it is a constitutional right of every accused person who is unable to engage a

lawyer and secure legal services on account of reasons such as poverty, indigence or

incommunicado situation and the State is under a mandate to provide a lawyer to an accused

person if the circumstances of the case and the needs of justice so require, provided of course

the accused person does not object to the provision of such lawyer.24

In Khatri v. State of Bihar,25court emphasized that obligation to provide free legal aid to

the poor accused arises not only when the trial begins but also when he is for the first time

produces before a magistrate because it is at this stage that the accused gets his first

opportunity to apply for bail and obtain his release as also he to resist remand of police or jail

custody thus the accused needs competent legal advice and representation at that stage.

Moreover it would be a mockery of legal aid if it were left to the poor, ignorant and illiterate

accused to ask for free legal services. legal aid would become a paper promise and would

fail in its purpose the trial judge is therefore obligated to inform the accused that if he is

unable to engage a lawyer on account of poverty and indigence, he is entitled to obtain free

legal services at the cost of the state.

Drawback - In the Indian Constitution there is no specifically enumerated constitutional right

to legal aid for an accused person. Also Article 39-A introduced in 1976, remains as a

Directive Principle of State Policy which while laying down an obligation on the State does

not lay down an obligation enforceable in Court of law and does not confer a constitutional

right on the accused to secure free legal assistance. However this was filled up by the creative

judicial interpretation of Article 21 in M.H. Hoskot v. State of Maharashtra26 that a

procedure which does not make legal services available to an accused person who is too poor

to afford a lawyer and who would, therefore go through the trial without legal assistance

cannot be regarded as reasonable, fair and just. It is essential ingredient of reasonable, fair

and just procedure guaranteed under Article 21 that a prisoner who is to seek his liberation

through the court process should have legal services made available to him.27

24 Right to Bail as a Constitutional Right By Vidhan Maheshwari, National Law Institute University, Bhopal25

AIR 1981 SC 92826 AIR 1978 SC 154827 Right to Bail as a Constitutional Right By Vidhan Maheshwari, National Law Institute University, Bhopal

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Right to Bail under Section 167(2), Code of Criminal Procedure 28Section 167(2) reads

as: The Magistrate to whom all accused person is forwarded under this section may, whether

he has or not jurisdiction to try the case, from time to time, authorise the detention of the

accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the

whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further

detention unnecessary, he may order the accused to be forwarded to a Magistrate having such

jurisdiction:

Provided that-(a) The Magistrate may authorize the detention of the accused person,

otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied

that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the

accused person in custody under this paragraph for a total period exceeding-(i) Ninety days,

where the investigation relates to an offence punishable with death, imprisonment for life or

imprisonment for a term of not less than ten years;

(ii) Sixty days, where the investigation relates to any other offence. And, on the expiry of the

said period of ninety days, or sixty days, as the case may be, the accused person shall be

released on bail if he is prepared to and does furnish bail, and every person released on bail

under this sub-section shall be deemed to be to released under the provisions of Chapter

XXXIII for the purposes of that Chapter;

(b) No Magistrate shall authorize detention in any custody under this section unless the

accused is produced before him;

(c) No Magistrate of the second class, not specially empowered in this behalf by the high

Court, shall authorize detention in the custody of the police.

Explanation I. For the avoidance of doubts, it is hereby declared that, notwithstanding the

expiry of the period specified in paragraph (a), the accused shall be detained in Custody so

long as he does not furnish bail.

Explanation II. If any question arises whether an accused person was produced before the

Magistrate as required under paragraph (b), the production of the accused person may be

proved by his signature on the order authorizing detention.

Thus, with the incorporation of section 167(2) Code of Criminal Procedure the investigating

agency is required to complete the job of investigation and file the charge-sheet within the

time limit of either 60 or 90 days as the case may be. In case the above is not completed

within the definite period a most valuable right accrues to the accused. The accused is, in that

eventuality, entitled to be released on bail. It would be seen that the whole object of providing28 Right to Bail as a Constitutional Right By Vidhan Maheshwari, National Law Institute University, Bhopal

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for a prescribed time limit under section 167(2) Cr.P.C. to the investigation agency to

complete the investigation was that the accused should receive expeditions treatments at the

hands of the criminal justice system, as it is implicit in Article 21 that every accused has right

to an expeditions disposable of his case.

However, Section 167 has been criticized with respect to the fact that the prescribed time

limit relates only to the investigation aspect and does not touch other segments of the

criminal-justice-system, thus the object (of speedy trial), behind section 167 stands frustrated.

Moreover section 167(2) is seen to paradoxically serve as a way of grant of liberty to some

dangerous criminals who would otherwise not be able to get it under our system (for example

they may not be otherwise entitled to bail by virtue of nature and gravity of offence.)

Abuse of Bail Justice System, Law and Poor

Poverty is not only a condition of having relatively low incomes. Going beyond income

poverty, the lack of a whole host of rights and capabilities is responsible for the

impoverishment of the lives of many people.29 The majority of the population in rural India,

lives in the thrall of poverty and destitution, and don't even have the money to earn one

square meal a day. Therefore the poor are unable to furnish bail, even though the amount

fixed by the magistrate is not so high, that is the poor accused defaults in furnishing bail even

for a small amount. For example, Fragmentation of land holdings is a common phenomenon

in rural India. A family consisting of around 8 to 10 members depends on a small piece of

land for their subsistence, which also is a reason for disguised unemployment. When one of

the members of such a family gets charged with an offence, the only way they can secure his

release and paying the bail is by either selling off the land or giving it on mortgage. This

would further push them more into the jaws of poverty.30

Most of the undertrials languish in jail instead of being out on bail. Yet, they are still

expected to serve a surety even though they have been charged with a bailable offence where

the accused is entitled to secure bail as a matter of right. As a result, a poor man languishes

behind bars, subject to the atrocities of the jail authorities rubbing shoulders with hardened

criminals and effectively being treated as a convict. To substantiate the above, it can be stated

that According to the 78th report of the Law Commission as on April 1, 1977, of a total

prison population of 1,84,169, as many as 1,01,083 (roughly 55%) were under-trials. For

29 Interdependence in Overcoming Injustice(s) of Poverty: Some Preliminary Observations by R. Sudarshan.30 Article - Indian System of Bail- Anti Poor by Urvashi Saikumar, Amity Law School.

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specific jails, some other reports show: Secunderabad Central Jail- 80 per cent under-trials;

Surat-78 per cent under-trials; Assam, Tripura and Meghalaya-66 per cent under-trials. 31

Courts mechanically, and as a matter of course, insist that the accused should produce

sureties who will stand bail for him and these sureties must again establish their solvency to

be able to pay up the amount of the bail. Moreover, the bail fixed by the Courts in several

cases is unreasonably excessive, which serves as a huge deterrent to the poor. They find it

extremely hard to obtain a bail and consequently end up languishing in the prisons. So,

although they are presumed innocent they are subject to the psychological and physical

privations of jail life. This is one of the ways in which the poor find the legal and judicial

system oppressive and heavily weighted against them.

The practice of fixing the amount of bail with reference to the nature of the charge without

taking into account relevant factors, such as the individual financial circumstances of the

accused and the probability of his fleeing before trial is harsh and oppressive and as observed

before, discriminates against the poor. The risk of monetary loss is not the only deterrent

against fleeing from justice, but there are other factors which act as equal deterrents. If the

Court is satisfied after taking into account on the basis of the information placed before it,

that the accused has his roots in the community and is not likely to abscond, it can safely

release the accused on his personal bond but a large section of the society is simply

disarticulated, that is, it is not in a position to voice its claims and obtain the apt redress .32

A careful perusal of the Code of Criminal Procedure, 1973 reveals that it is undoubtedly a

manifestation of the will of the dominant social classes determined by economic and political

motives. It makes abroad classification of crimes against property, person and state. Out of a

total of 511 sections, 81 deal with protection of property, 32 with offences dealing with

documents and property marks and 79 deal with those against human body. More than 58%

of the total number of sections have been earmarked to protect the interests of elite.

The Criminal Justice system in the country is cumbersome, oppressive and cumulatively

disastrous. The poor can never reach the temple of justice because of heavy cost of its access

and the mystique of legal ethos. The hierarchy of courts, with appeals after appeals puts legal

justice beyond reach of the poor. Making the legal process costlier is an indirect denial of

justice to the people, and this hits hard on the lowest of the low in society.33

31

Article - Indian System of Bail- Anti Poor by Urvashi Saikumar, Amity Law School.32 The Apathy of the Indian Legal System: Securing Access to Justice by Ketan Mukhija,200533 The Poor as Victims of Uses and Abuses of Criminal Law and Process by K.D. Gaur

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Some of the probable Reasons are, that our country is influenced by Common Law countries

which are organized as autonomous, self-governing independent institutions, and the idea that

they are part of a state, with a programmatic agenda for development and poverty eradication,

does not come naturally to most judges and lawyers. Secondly, judges may be very good at

sifting the merits of adversarial arguments and doing justice, but they are not necessarily

good managers. They tend to resist attempts to hand over the management and

administration of courts to people who are more professionally trained to manage because

they believe that doing that would compromise the quality of justice on the part of courts.

Thirdly, Judges in the country have taken the teleology of the constitution to a point where

they have given themselves the power to set aside not only statutes and regulations that are

inconsistent with the constitution, but also set aside duly enacted amendments to the

constitution.34

The Bail projects in the United States such as the Manhattan Bail Project and DC Bail

Project and The Report of the Legal Aid Committee, appointed by the Government of

Gujarat, 1971 brought about the evils of the bail system, in this fashion:

The evil of the bail system is that either the poor accused has to fall back on touts and

professional sureties for providing bail or suffer pretrial detention. Both these consequences

are fraught with great hardship for the poor, namely:

Though presumed innocent he is subjected to psychological and physical deprivations

of jail life;

He loses his job, if he has one, and is deprived of an opportunity to work to support

himself and his family with the result that burden of his detention falls heavily on the

innocent members of his family;

He is prevented from contributing to the preparation of his defence; and

The public exchequer has to bear the cost of maintaining him in the jail.

These projects have also highlighted the fact that, even without monetary bail it is possible to

secure the presence of accused at trial in a large number of cases.35

To sum up, A number of political, economic, and social steps have been taken since the

independence with a view to ameliorate the conditions of poor. A host of laws have been

34 The Apathy of the Indian Legal System: Securing Access to Justice by Ketan Mukhija,200535 The Apathy of the Indian Legal System: Securing Access to Justice by Ketan Mukhija,2005

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enacted with this objective in view i.e. eradication of poverty but effective implementation of

these laws has been the crux of the problem, there has always been a problem of the poor in

getting justice. The poor being illiterate and without resources cannot take advantage of

whatever remedies the law provides to them for the indication of their rights.

The supreme court has sought to take a cognizance of the problem of poverty and through a

series of notable decisions and has strived to three significant things 1). Facilitate access to

justice o the poor by demolishing certain traditional common law procedural obstacles 2).

Interpret the constitutional provisions more favorably to the poor so that the inert provisions

become lively and 3). Compel administration to enforce the law favoring the poor more

effectively.36

In Baba Singh v. State of UP,37 Krishna Iyer J observed that the issue is one of liberty,

justice, public safety and burden of the public treasury, all of which insist that a developed

jurisprudence of bail is integral to socially sensitive judicial process

Case Law:

The fact that under trials formed 80 percent of Bihars prison population, their period of

imprisonment ranging from a few months to ten years; some cases wherein the period of

imprisonment of the under trials exceeded the period of imprisonment prescribed for the

offences they were charged with- these appalling outrages were brought before the Supreme

Court in Hussainara Khatoon v. State of Bihar38. Justice Bhagwati found that these

unfortunate under trials languishing in jail were in such a position presumably because no

action application for bail had been made on their behalf either because they were not aware

of their right to obtain release on bail or on account of their poverty they were unable to

furnish bail. Following Maneka Gandhi v. Union of India39, he read into fair procedure

envisaged by Article 21 the right of speedy trial and sublimated the bail process to the

problems of the destitute. He thus ordered the release of persons whose period of

imprisonment had exceeded the period of imprisonment for their offences. He brought into

focus the failure of the magistrates to respect section 167(2) of Code of Criminal Procedure

which entitles an undertrial to be released from prison on expiry of 60 days or 90 days as the

case may be. The court said that detention was clearly illegal and in violation of their

36 Law and the poor: Some Recent Developments in India by M.P.Jain37

AIR 1978 SC 52738 AIR 1979 SC 136039 AIR 1978 SC 597

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fundamental right guaranteed under article 21 of the constitution of India. The present law

of bail thus operates on what has been described as a property oriented approach. Thus the

need for a comprehensive and dynamic legal service programme was left in order to revitalize

the bail system and make it equitably responsive to needs of poor prisoners and not just the

rich. In the same case the honble court also observed that it is an essential ingredient of

reasonable, fair and just procedure to a prisoner who is to seek his liberation through the

courts process that he should have legal services available to him.

The travails of illegal detainees languishing in prisons, who were uniformed, or too poor to

avail of, their right bail under section 167 Cr.P.C. was further brought to light in letters

written to justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v.

State of Bihar40. In this case the illegal detention of about sixteen prisoners was in question

and The court recognized the inequitable operation of the law and condemned it- The rule of

law does not exist merely for those who have the means to fight for their rights and very often

for perpetuation of status quo but it exist also for the poor and the downtrodden and it is

solemn duty of the court to protect and uphold the basic human rights of the weaker section

of the society.

State of Rajasthan v Balchand,41 the accused was convicted by the trial court. When he

went on appeal the High Court, it acquitted him. The State went on appeal to the Hon'ble

Supreme Court under Art. 136 of the Constitution through a special leave petition. The

accused was directed to surrender by the court. He then filed for bail. It was then for the first

time that Justice Krishna Iyer raised his voice against this unfair system of bail

administration. He said that though while the system of pecuniary bail has a tradition behind

it, a time for rethinking has come. It may well be that in most cases an undertaking would

serve the purpose.

In Maneka Gandhi v Union of India42 , Justice Krishna Iyer once again spoke against the

unfair system of bail that was prevailing in India. No definition of bail has been given in the

code, although the offences are classified as bailable and non-bailable. Further Justice

P.N.Bhagwati also spoke about how unfair and discriminatory the bail system is when looked

40

(1982) 2 SCC 583.41 AIR 1977 SC 244742 AIR 1978 SC 597

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at from the economic criteria of a person this discrimination arises even if the amount of bail

fixed by the magistrates isn't high for some, but a large majority of those who are brought

before the courts in criminal cases are so poor that they would

find it difficult to furnish bail even if it's a small amount.

In Moti Ram and Ors. v State of M.P43, the accused who was a poor mason was convicted.

The apex court had passed a sketchy order, referring it to the Chief Judicial Magistrate to

enlarge him on bail, without making any specifications as to sureties, bonds etc. The CJM

assumed full authority on the matter and fixed Rs. 10,000 as surety and bond and further

refused to allow his brother to become a surety as his property was in the adjoining village.

MR went on appeal once more to the apex court and Justice Krishna Iyer condemned the act

of the CJM, and said that the judges should be more inclined towards bail and not jail. The

following observation was made, we leave it to the parliament to consider whether in our

socialist republic, with social justice as its hallmark, monetary superstition, not other relevant

considerations like family ties, roots in community, membership of stable organisations,

should prevail over bail bonds to ensure that the bailee does not flee justice. The best

guarantee of presence in the court is the reach of law, not monetary tag. A parting thought if

the indigents are nit to be betrayed by law including bail law, re-writing of many processual

laws is an urgent desideratum

It was brought before the Supreme Court in Free legal aid committee, Jamshedpur v State

of Bihar44 that in many of the magistrates court, the accused is harassed by police and made

to appear before the court every fourteen days even though he is on bail which cause

considerable hardships to the poor victim of the criminal process. The court held that such a

practice is deplorable and against the norms of criminal administration.

In Common Cause v. Union of India45, the Supreme Court held that in instances where

cases are pending for offences under the Penal Code or other laws punishable with

imprisonment for specific periods and the trial has not yet commenced or the accused has not

been released on bail and is detained beyond a certain period, the Court shall release the

accused on bail or a personal bond imposing suitable conditions in the light of Section 437 of

the Criminal Procedure Code. Further, in respect of offences which are non-cognizable and

43

AIR 1978 SC 159444 AIR 1982 SC 146345 (1996) 4 SCC 33

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bailable and in certain other cases where trials have not commenced for specific periods, the

Courts shall discharge or acquit the accused and close such cases.

In Sunil Batra v Delhi Administration46case, court observed that basic prison decency is

an aspect of criminal justice, by isolating criminals and confining them o isolated places in

jail from the rest of the society mainly two objectives are served, firstly, criminal as well as

other people are deterred from committing crime. Secondly, it serves as a protective function

by quarantining criminal offenders for a given period of time. Also it is hoped that after their

release from jail they will be rehabilitated properly. The latter objective is the central theme

of all correctional facilities. Prisons are built with stones of law and so, when human rights

are hashed behind the bars constitutional justice impeaches such law. Thus court which sends

a citizen to prison has an onerous duty to ensure that during detention and subject to the

constitution, freedom from torture belongs to the detenue.

The Way Forward

In Bal Chand v State of MP47Court Observed that rethinking has to be done now on the

subject of demanding bail which has got set deeply as a tradition of our legal system

The Report of Expert Committee and Legal Aid Processual Justice to the People, May

1973 quoted in Moti Ram Case:48

a liberal policy of conditional release without monetary sureties or financial security and

release on ones own recognizance with punishment provided for violation would reform the

bail system and would help the poorer sections of the society to get equal justice under law.

Under conditional release the accused may either be entrusted to his relatives or any other

person. To require a poor accused to provide for bail is to compel him to stay in custody and

to unable him to make his defense.

Keeping the above in mind, the following are a few suggestions which would help strengthen

the Bail Justice System in the country:

46

AIR 1980 SC 157947 AIR 1977 SC 36648 Criminal Law and Criminology by A.N. Chaturvedi, 2003

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Empowerment of Panchayati System- It is thought that from the various schemes

the government operates for rural employment, loans to farmers etc, a portion of the

funds which it transfers to the panchayat for developmental work of the same should

be set aside and kept to meet the bail amount for undertrials belonging to theparticular panchayat / block. The utilization of this fund would be in the hands of the

elected leaders of the society with the representative of district collector / district

magistrate being a part of the system. This would, go a long way in securing freedom

for scores of undertrials who would then be able to contribute to society thereby

playing an important role and forming part of the national mainstream. Such a

scenario will have the effect of reducing the burden of over-crowding in jail. 49

Setting up of Seperate Jails- The setting up of separate jails, or at any rate isolating

undertrials from convicts, would prevent hardened criminals from exercising their

deleterious influence over undertrials. Such segregation would also change the

attitude of jail authorities and society at large towards under trials.

Reformatice actions- The under trials who have been charged with petty crimes can

further be put in reformative homes instead and asked to do community service till the

time they are released on bail. Elementary education facilities must be granted tothose under trials who are uneducated and illiterate.

Knowledge and Organisation - Empowerment of the poor through both knowledge

and organization brings in the added benefit of assertiveness and confidence in their

dealings with public officials.

Collective action- Helping the poor to organize themselves for collective action

against injustice is essential to foster concrete action that could reverse the prevalent

perception that the system is rigged against their interests and that it is hopeless to

seek justice. When the weak work together as a collective group to confront those

responsible for perpetrating injustices they have a better chance of overcoming

structural imbalances in the distribution of power. And the very process of organizing

collective action can diminish the degree of individual helplessness, and create the

49 Article - Indian System of Bail- Anti Poor by Urvashi Saikumar, Amity Law School.

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foundations for establishing durable organizations that can safeguard the interests of

the poor.50

Role of Judges- Judges are required in this context to protect those who are most

vulnerable from the pressures of those who are more powerful, especially the State.

The judges should take the lead in setting up multidisciplinary research projects

taking up issues such as to evaluate bail criteria, to develop well-thought-out policies

about their use, and to examine the effects of granting bail with conditions.

Role of Government - Governments must ensure adequate access to justice through

institutions, so that citizens can enjoy their basic human rights. In order for this to be

achieved, existing laws should be reformed so that the necessary institutions and

legal infrastructure could be put in place. The governments should improve legal aid

programmes so that persons who felt aggrieved about the violation of their rights

could have legal representation to assist them in vindicating their claims

Advanced Technology - the Judiciary must explore the option of using advanced

technology to increase the efficiency of the Courts.Transparency in the functioning of

Indian Courts is the need of the hour.

Adoption of Principles adoption of principles such as, Article 9(3) of the

International Covenant for Civil and Political Rights (ICCPR) which lays down that

persons awaiting trial should be released subject to guarantees to appear for trial,

Article 10 of the ICCPR directs that people deprived of their liberty shall be treated

with humanity and respect. Article 10(3) lays down that the penitentiary system shall

not compromise treatment of prisoners, the essential aim of which shall be their

reformation and social rehabilitation.

Article 1 of the UN Convention against Torture and other cruel, inhuman or

Degrading Treatment or Punishment defines torture as any Act by which severe pain

or suffering, whether physical or mental, is intentionally inflicted on a person for such

purposes as obtaining from him or a third person information or a confession,

punishing him for an act he or a third person has committed or intimidating or

coercing him or a third person; or for any other reason based on any discrimination of

50 The Apathy of the Indian Legal System: Securing Access to Justice by Ketan Mukhija,2005

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any kind, when such pain or suffering is inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in public capacity.

Article 4 calls for making torture an offence under domestic law, shall definitely and

unmistakably lead in the building up of a legal regime that is more litigant friendly

and efficient.51

Legal Resource Approach - the legal resources approach, starts from two basic

concepts. The first is the concept that law is a means of empowerment and that groups

of the impoverished seeking to develop countervailing power through mobilization

and organization, can also use law as one of their means of empowerment. The second

is the concept that law is a resource either as a source of rights and remedies, or as a

means for buying more time and harassing the oppressor.52

Legal aid plans- should ensure that all duty counsel who represent people at the

hearings have experience in the field of criminal law and meet minimum standards for

adequate performance. The practice of authorities to deny legal representation to low-

income people accused of minor criminal offences that do not normally bring

sentences of imprisonment must be firmly curbed. The states ought to provide

sufficient and ongoing funding to services in remote areas, bail support services,treatment programs, half-way houses and other services in order to provide equal

treatment to low-income people in the criminal justice system and to maximise the

chance that ex-offenders will stay out of the justice system in the future

Public Interest Litigations53Article 32provides a guaranteed, quick and summary

remedy for enforcing the Fundamental Rights because a person can go straight to the

Supreme Court without having to undergo the dilatory process of proceeding from the

lower court to the higher court as he has to do in ordinary litigation the court enjoys

broad discretion in the matter of framing writs to suit the exigencies of the particular

case and it would no throw out the application of the petitioner simply on the ground

that the proper writ or direction has not been prayed for.

51

The Apathy of the Indian Legal System: Securing Access to Justice by Ketan Mukhija,200552 The Apathy of the Indian Legal System: Securing Access to Justice by Ketan Mukhija,200553 Law and the poor: Some Recent Developments in India by M.P.Jain

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Article 226, gives High Court to issue a writ, order, or direction for the enforcement

of a fundamental right or for any other purpose i.e. cognizance can be taken for a

matter other than a fundamental right.

Public Interest Litigation means where the legal rights of the poor, ignorant, socially

and economically disadvantaged persons are sought to be vindicated through a court

action, the court will permit the concerned persons to agitate such matters before the

court. A non-political, non-profit and voluntary organisation consisting of public

grievance can be permitted to take the case of the poor who could not themselves seek

redress through the costly and protracted judicial and legal process. The Supreme

Court relaxed the rule of locus standi so the rights of the poor can be redressed before

the courts. In Peoples Union for Democratic Rights v Union of India (Asiad

Workers case) due to the Asian games to be held in Delhi, a lot of construction work

was engaged in by private contractors on the basis of their contract with the Central

and Delhi Government as well as the Delhi Development Authority. Labour was

employed, though labour laws were not observed. Peoples Union for Democratic

Rights, a non political voluntary organisation through a letter complained about the

violations of the labour laws, this letter was based on the report of three social

scientists who were commissioned to inquire into the conditions of the workmen so

employed. A bench of Supreme Court treated the letter as a writ petition and decided

on the matter. Bhagwati J. Observed that Anglo Saxon system of jurisprudence is no

longer valid. A new dimension has been given to the doctrine of locus standi which

has revolutioned the whole concept of access to justice

Other steps involve: engaging the poor in a dialogue for empowerment;

coordinating the participation of all role players in the law reform process;

fostering linkages to regional and international networks for the purposes of

advocacy, training and capacity-building within existing institutions and, where

necessary, the creation of new ones;

advocating for lay participation in the justice system so that the Courts are better

informed;

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advocating for the establishment of such offices as that of the Ombudsperson in order

to promote an accountable and transparent legal and judicial environment;

encouraging lawmakers and the legal profession to use local language and simplify

language in the justice system and inform poor communities how the formal system

works;

preventing adjournment of cases as it affects the administration of law and justice;

setting up a standard for determination of the amount of bail;

and initiating pilot studies tracking cases in the civil, criminal and administrative

Courts thereby also monitoring and assessing the quality of judgments and the delays

in their execution.

Only thus, we can make this world a better and more peaceful place to reside in as,

Equality before the law in a democracy is a matter of right

Conclusion

To conclude the above, it can be safely said that though the courts in some cases have tried to

intervene and also have laid down certain guidelines to be followed but unfortunately nothing

has been done about it. There is also a strong need felt for a complete review of the bail

system keeping in mind the socio-economic condition of the majority of our population.

While granting bail the court must also look at the socio-economic plight of the accused and

must also have a compassionate attitude towards them. A proper scrutiny may be done to

determine whether the accused has his roots in the community which would deter him from

fleeing from the court.

Restructuring the justice system, streamlining the justicing process, reorienting the social

perspective of justice, re-educating the prosecution and judiciary are important aspects of

criminal jurisprudence. The common man will never get justice unless the tempo of disposal

not only in the courts but also in the secretariat and the administrative tribunal speed up.

Tinkering is insufficient, engineering is essential. Law cannot be an instrument of

maintaining social order but must also be ameliorative to remove pain and suffering from the

society.

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By way of conclusion, Justice V.R. Krishna Iyer, called upon judges, to ask themselves:

Who are our people? Where is their habitat? What, in human terms, does justice mean to

them? How can law and its administration, through conventional court processes, fulfil the

hunger of the common man for simple, quick justice, which assures him a fair share of the

good things of life? By what means does the law in the books communicate with life in the

raw? Can the gap between lawyers law and the rule of life be bridged? These were the

questions as per him, that should define our quest for access to justice, mindful of his warning

that the judiciary is not the least dangerous branch of Government, sans sword, as is often

assumed, but can be the most despotic, unaccountably empowered and unreviewably

authoritarian.54

Thus the persons in authority and responsible for the enforcement of law and setting legal

machinery in motion to safeguard the interest and well being of the people must not use,

abuse and misuse the law for personal gain, but mould law to keep in accord with accepted

social objectives.

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Criminal Law and Criminology by A.N. Chaturvedi, 2003.

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Code of Criminal Procedure Dr. S.R. Myneni, 2004 Edition.

54 V.R. Krishna Iyer, Judiciary: A Reform Agenda I and II the Hindu, August 14 and 15, 2002, Chennai

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inability to bail

Documents