Affirming the primacy of bail

An unfortunate facet of the Indian criminal justice system is the prolonged incarceration of people not convicted of any crime because of denial of bail. Despite four decades of Supreme Court (SC) jurisprudence stressing the importance of granting bail as a matter of practice and jail time only in exceptional circumstances, thousands of people continue to languish behind bars even as the cases against them drag on, sometimes for years. On Monday, the SC attempted to remedy this situation by suggesting that the government bring in a law to streamline the process of granting bail, and also passed a slew of directions on arrest procedure and deadlines for disposal of bail plea.

To be sure, this is not the first time the SC has underlined the importance of granting bail in recent years. With the intent to address unreasonable and illegal arrests, the SC in Arnesh Kumar vs State of Bihar 2014 directed all states to instruct police officers that before undertaking an arrest (in cases where the offence is punishable with imprisonment for a term less than seven years), they must satisfy themselves about the necessity to arrest based on parameters laid down in Section 41 of the Code of Criminal Procedure. Time and again, the court also reiterated the triple test doctrine, which says an accused can be granted bail if they’re not at flight risk, liable to tamper with evidence or influence witnesses. In the Satinder Kumar Antil case — in which Monday’s pronouncement was made — the SC issued guidelines last year to facilitate the release of people and discourage unnecessary arrests, especially after the charge sheet is filed and where the suspects are cooperating with the investigation.

Yet, one glance at India’s overburdened prisons — where undertrials make up two-thirds of the strength — is enough to show that despite these judgments, lower courts remain hesitant in granting bail, investigating authorities continue to push to keep people behind bars for the maximum time possible, and financial, social, and legal hurdles hobble the access to bail for marginalised/people. Many guidelines, including in the Kumar case, are observed largely in breach because of a lack of awareness or problems with ensuring compliance. A new bail law that builds in adequate safeguards can, therefore, be a step in the right direction if adequately disseminated. But as the apex court observed last year, the real problem appears to be that of mindsets that are set against granting bail. To reform such attitudes might prove a steeper challenge.

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