To Bail or Not to Bail

 By

Sadia Akhtar 

New Delhi:  The criminal justice system in the country offers the provision of bail as a temporary relief from a jail term, but there are many, who, despite being granted bail end up languishing behind bars for want of legal assistance or money. The judicial philosophy of ‘Bail is the rule and jail an exception’ has been in place for several years but that has not stopped undertrial prisoners from being detained in custody for indefinite periods.

Articles 14 and 22(1) of the Indian constitution make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all. However, in reality there seems to be little application of this principle.

“There are over 4 lakh people in 1387 jails in India with over 68% being undertrials – principally due to non-availability of bail amount. The bail system ensures that rich stay out of jail and the poor languish in prisons,” says Shobha Aggarwal, lawyer and joint secretary  of Public Interest Litigation Watch Group, an advocacy group which has been campaigning on ‘bail not jail’ since the past two years.

Bail is meant to secure presence of the accused during the trial on the conditions that he or she does not tamper with evidence or attempts to influence witnesses. The security is forfeited if one does not appear in the court. “General rule is that bail surety should not be more than the capacity of the person. In most cases, the surety amount is between Rs 10,000 and Rs 15, 000,” says Imran Ali, a lawyer at the Supreme Court.

However, there are many who have been forced to stay behind bars even for bailable offences.  “There are people who have been denied bail for crimes like theft of a paltry sum of money. They do not have a lawyer or anyone who can pursue their case or apply for bail. Most of the poor accused are largely Schedule Castes or Schedule Tribes or religious minorities – it is these people who are incarcerated in jails,” says Kashif Ahmed Faraz, Assistant National Coordinator of Association for Protection of Civil Rights, an NGO which has been working towards the cause of custodial killings, false implications and illegal detentions.

Earlier in March this year, Union Law Minister Sadananda Gowda, acknowledging the need to revamp the system of granting bail, mooted the possibility of a Bail Act that would ensure “uniformity and predictability” in matters relating to grant of bail in the country. However, experts are divided over the merits of the move.

“The law minister wants the British and American bail laws to be studied. This reflects his colonial mentality. There are enough Supreme Court judgements on the issue of bail to act as guide,” says Aggarwal.

There are state legal authorities for the purpose of providing legal aid but there is a wide gap between the goals set and met. “There are loopholes at the implementation level. These state legal bodies also demand money at times,” says Ali.

Some experts have also mooted the idea of having a Bail Corpus Fund through which surety amount can be paid. “The bail money should be proportional to the economic status of the person. The rich have no problem in arranging a higher bail amount. The poor should have their bail amount through an all India Bail Corpus Fund,” says Aggarwal.

The principle should be ‘bail not jail’. Not even 1% of those accused jump the bail. Vast majority of the accused get acquitted. Why should their liberty be curtailed for years in jail? Since the government has all the data of all the citizens through Aadhar (biometric data), Pan-card and bank account details, the liberal bail policy would work out well, added Aggarwal.

Lack of legal awareness among people also acts as an impediment in securing bail. “The need of the hour is imparting legal aid and creating legal awareness among the poor and the illiterate.  Apart from legal activism, clear provisions for securing bail are crucial so that financial poverty does not become a reason of violating someone’s liberty,” says Ahmed.

[The above article from 'Converge' has been reproduced here for educational and non-commercial purposes. The article was originally published at: http://theconverge.in/to-bail-or-not-to-bail/ ]