Bail, Not Jail: Why Supreme Courts Has Urged Govt To Frame New Bail Act

Noting the high number of undertrials in Indian prisons, the Supreme Court recently observed in a democracy, there can never be an impression that it is a police state.

Bail, Not Jail: Why Supreme Courts Has Urged Govt To Frame New Bail Act

What is liberty and is it the same for all? Philosophers, lawyers, educationists, lawmakers, and several others over millennia have tried to answer that question. And recently, the Supreme Court of India also tried to answer that question by suggesting the Centre mull over a new law for bail. 

"Liberty, as embedded in the law, has to be preserved and protected" the apex court observed on Monday as it directed the Centre to consider framing new legislation on bail to streamline the release of accused in criminal cases noting that the Code of Criminal Procedure as it exists today is a continuation of the pre-independence era with its modifications.

The Court felt that “there is a pressing need” to reform the laws on bail and also noted that jails in the country are flooded with undertrial prisoners and the majority may not even be required to be arrested despite registration of a cognisable offence.

The observations were made by a two-judge Bench comprising Justices Sanjay Kishan Kaul and M M Sundaresh while issuing certain clarifications about a July 2021 judgment about bail reform in the Satender Kumar Antil vs CBI case.

In its The 85-page ruling, the court essentially reiterated several crucial principles of criminal procedure and stressed on the need for legal reforms to strengthen democracy as well as the constitutional validity of the country's institutions and law and order processes.

What is India's current legislation on bail?

Though the world "bail" is not explicitly defined by the CrPc, it has listed offences that have categories either as "bailable" or "non-bailable" as per the Indian Penal Code. For a bailable offence, magistrates are empowered by the CrPCto grant bail to the applicant as a "matter of right", meaning that the applicant will be released upon furnishing a legitimate bail bond.

For cognisable non-bailable offences, police are enabled to arrest without warrant after which a magistrate will determine whether to release the accused on bail or not.

"Democracy, Not a Police State": What is the Significance of framing new bail laws?

The recommendation to consider framing the new bail law assumes significance given the clogging of bail pleas of several undertrial prisoners including activists, political leaders, and journalists.

The court observed in a democracy, there can never be an impression that it is a police state. "As observed by this Court, it certainly exhibits the mindset, a vestige of colonial India, on the part of the Investigating Agency, notwithstanding the fact arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police State as both are conceptually opposite to each other," it said.

The SC also noted that "Of this category of prisoners, the majority may not even be required to be arrested despite registration of a cognisable offence, 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."

On Criminal courts

The Court also raised concerns about the "abysmally low" rate of convictions in criminal cases in India, thus bail applications are regarded in a negative sense.

"Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature with that of a possible adjudication by way of trial.

"On the contrary, an ultimate acquittal with continued custody would be a case of grave injustice. Criminal courts in general with the trial court in particular are the guardian angels of liberty. Liberty, as embedded in the Code, has to be preserved, protected, and enforced by the Criminal Courts. Any conscious failure by the Criminal Courts would constitute an affront to liberty," said a bench of Justices S K Kaul and M M Sundresh.

It said it is the pious duty of the Criminal Court to zealously guard and keep a consistent vision in safeguarding the constitutional values and ethos.

A criminal court must uphold the constitutional thrust with responsibility mandated on them by acting akin to a high priest, it said.

It said an investigating agency has to expedite the process of investigation as a suspect is languishing under incarceration.

"Thus, a duty is enjoined upon the agency to complete the investigation within the time prescribed and a failure would enable the release of the accused. The right enshrined is an absolute and indefeasible one. 

"Such a right cannot be taken away even during any unforeseen circumstances, such as the recent pandemic," the bench said in its 85-page judgement. 

It said High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions so that appropriate steps under the law can be taken for their release.

It said bail applications be disposed of within two weeks except when provisions mandate otherwise while pleas for anticipatory bail be decided within six weeks. 

A new Bail Act

The court urged the government to consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails," the bench said while pronouncing a judgement in a case related to the arrest of a man by the CBI. It observed that there is a pressing need for the introduction of an Act specifically meant for granting bail as done in various other countries like the United Kingdom.


"Our belief is also for the reason that the CrPC as it exists today is a continuation of the pre-independence one with its modifications. We hope and trust that the Government of India would look into the suggestion made in right earnest," it said.

Probe agencies in India and their officers are duty-bound to comply with section Section 41-A of the CrPC (Notice of appearance before police officer).

The court said the State and Central Governments will have to comply with the directions issued by this Court from time to time concerning the constitution of special courts.

The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.


What other countries have a Bail Act?

The United Kingdom enacted the Bail Act in 1976 which explicitly codified the procedures involved in the granting or denyiiong of bail. The law was designed with the aim to bring the number of prison inmates in British jails. 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.