The Law Commission of India is likely to recommend major reforms in criminal law to liberalise granting of bail to accused persons. One of the recommendations include using aadhar cards instead of bail bonds for cash-strapped defendants.
If adopted by the legislature and enforced, many of these reforms could provide major relief to tens of thousands of undertrials across India’s overstretched jails.
“Justice has become very expensive and a rich man can get justice on the same day. Often, even when a court has granted bail, there is nobody to fill the bail bond or provide surety and the person remains in judicial custody despite bail being granted,” said a functionary aware of the reforms being discussed for finalisation.
In case of poor people, unable to fill in their bail bond, the recommendations suggest using personal bonds based on government-verified, standard identification documents such as aadhar or voting cards.
“After all, the aadhar is inter-linked with everything else. So, it should be easy to use them in granting bail,” said the functionary.
A panchayat can also be called on to give a ‘community surety’ for a resident of the village, especially when they are unable to produce any property or valuable as surety.
Several courts also ask for a local surety for out-of-town accused persons. The Law Commission is likely to suggest that for such out-of-town defendants, the bail should be granted on a personal bond, based on aadhar or other acceptable documents.
In September 2015, then union law minister, Sadananda Gowda, had written to the LCI asking for a comprehensive report on arrest and bail. Gowda had pointed out that though the law said that an accused person was presumed innocent till proven guilty, he suffered the “…physical and psychological deprivation in jail.”
According to practice, bail is usually denied when the investigation is still underway and there is an apprehension that the accused person will interfere with the probe and/or tamper with witnesses or evidence.
The Law Commission has held several seminars and conferences across stakeholders. There were also massive inputs from police departments during conferences held in police headquarters and consultations with the bureau of police research and state police chiefs.
One of the most widely-discussed bail orders was that of actor Salman Khan, who was on bail throughout the trial and was also granted bail immediately after conviction while his appeal was pending. The judge who granted bail was transferred from Mumbai all the way to a court in Uttar Pradesh.
“He could've reserved the order and kept him in custody for a few days. A poor man will stay in jail for multiple years while his trial also takes a long time. But they see that a richer man or a celebrity gets bail promptly. There was no question about the integrity of the judge or the soundness of the order but only a question on the procedure,” he said.
According to sources, the LCI has not considered terror laws such as the Unlawful Activities Prevention Act (UAPA) in the same light and the new bail reforms may not be recommended for those accused for offences under the UAPA.
This is not the first time the law commission has been entrusted with such a task. In 1979, the Justice HR Khanna-led Law Commission had also made several recommendations in the 78th Report, to decongest jails.
One suggestion was to prioritise cases where the accused was in custody and hold time-bound investigations within four months. These were to be monitored by trial magistrates who would prepare regular reports on such cases where the accused were in custody. It suggested that if agencies were unable to conclude probes within the time frame, the accused should be released on bail.
The 78th Report did not suggest a statutory ceiling for the bail amount but, as per sources, the new recommendations are likely to set a ceiling on the bail amount and provide alternatives for when the surety amount cannot be produced.
Several crucial reforms had also been recommended by the Law Commission, led by Justice (retd) K Jeevn Reddy, in its 177th Report.
Except for serious offences like murder, dacoity, robbery, rape and offences against the State, the report had recommended that “bailable provisions should be made liberal and bail should be granted almost as a matter of course”. The exceptions made were in cases where there was an apprehension that the accused may disappear or continue to commit offences.
The test for that would be an accused with an established criminal record and should not be solely on the basis of the police’s apprehensions.
The set of reforms, likely to be recommended by the current Law Commission, may have more crucial and pointed reforms for the justice system.