The National Crimes Record Bureau, in its annual publication – “Prison Statistics Report, 2014”, revealed that in over 1336 prisons situated across India, 67.6% (2,82,879) of the total population of prisoners (4,18,536) were under trials – individuals yet to be held guilty by any Court of Law.¹ The decision to detain a person before the accused is found guilty not only goes against the fundamental axiom of criminal jurisprudence, which presumes that a person is innocent until proven guilty, but also hinders the application of the constitutionally guaranteed right to personal liberty. Pre-trial detention wreaks havoc on the lives of detainees by causing them to lose their jobs, health, family and community ties. The ramifications of bail, are often, more keenly felt by the poorer sections of the population, than the others, because they are unable to afford the tools provided by an expensive criminal law justice system, namely Bail.²

The Code of Criminal Procedure in India, does not define the word “Bail”. It only provides for the definitions of bailable and non-bailable offences.³ Bail has been defined in Law Lexicon as “security for the appearance of the accused person on which he is released pending trial or investigation.” A cursory reading of the sections 436-450 which are the bail provisions in the Code show how unjust these provisions are, since the person in need of bail is required to execute personal bond or a bond of security for a certain amount of money, and no rule or provision has been laid down to govern the cost of such amounts. The courts have been awarded full discretion to put a monetary cap on the bond. Unreasonably high bail amount, as a result, has led to those who cannot afford to avail any surety, to suffer in jail till the case is over.⁴ Pre-trial of the accused, therefore, is neither determined by the innocence, guilt or character of the defendant, nor is it determined by the nature of the crime. The factor that determines the release is simply, money.

Due to the overwhelming focus on public peace and order, there has been a greater thrust on the police force to secure convictions, which has led to an increase in convictions of innocent people from the lower economic strata. Those implicated by the police are usually from the lower rungs of society, and have no agency. They are subject to arbitrary actions and brutality of police and corrupt bureaucrats who often try pushing them to confess through torture methods. Bail acts as a tool of compulsion, forcing people who would not otherwise plead guilty to do so to simply gain freedom, leaving them with a permanent criminal record. The criminal history record is then used to refuse bail in subsequent almost immediate convictions.

Most pre-trial detainees, who are languishing in jail, are exposed to severe torture, extortion, and disease. They also have fewer opportunities for education and training than sentenced prisoners because they are considered a transitory population. Their detention is seen as temporary and therefore not requisitioning healthcare, education, or training services. Since they’re confined for months within the jail, they’re not even provided with the basic right to prepare their defense for the trial.⁵

Concern over the injustice of the money bail system led to the formation of the Manhattan Bail Project in the early 1960s. They employed a simple strategy of conducting inquiries into the backgrounds of thousands of defendants to assess whether the defendant could be trusted to return for his/her trial without being required to purchase a bail bond. All the factors like, employment history, community and family ties, prior criminal records – which they took into account were used to determine the flight risk posed by the defendant. They were successfully able to demonstrate that people with strong ties to the community could be safely released from custody without bail merely on their promise to return to court. The project revealed that only 1.6% of them failed to show up for their trials for reasons within their control. Similar projects sprung up in other States in America, leading these States to either completely repeal their money-bail system or at least introduce bail reforms.⁶

In India, suggestions provided by projects like the Manhattan Bail Project and DC Bail Project have been alluded to as alternatives to the money bail system in judgments of Justice Krishna Iyer and Justice P. Bhagawati. In the cases of Moti Ram and Hussainara Khatoon respectively, the judges lambasted the government for its ineptitude in dealing with undertrials.⁷ Both the cases mentioned above refer to Article 21 and the case of Maneka Gandhi to critique the pre-trial detention in India.      

Article 21 provides that no person can be deprived of his life or personal liberty except according to procedure established by law. The Maneka Gandhi case, in spirit of Article 21, ruled that any procedure which detains a large pool of people in prison without a trial cannot be regarded as “reasonable”, “just” or “fair”. The courts ruled that access to speedy trial classifies as a Fundamental Right under Article 21 of the Constitution.

Bail has been used by the police and courts to not only indict the low risk poor but also those who do not subscribe to the State’s majoritarian ideology. Similar to how the police in America focus disproportionately on African-Americans, the police in India tend to focus on religious minorities, Dalits and Adivasis. They have used the bail provision of the Criminal Code tactically to their advantage by stifling their voices and holding them in jail for extended spells of time.⁸ In recent times, there has been a strong clarion call to establish a rational and coherent system of bail. The system of bail that we have now, runs on incarcerating defendants, for no reason other than the reason that they cannot afford to pay bail money. The corollary of this being that no amount of money should buy the freedom of someone who is truly dangerous.  The presumption that financial bail is required in all cases to guarantee the attendance of the defendants, has been proved wrong, by projects like the Manhattan Bail and DC Bail Project. These projects reveal that resorting to non-financial conditions like GSP monitors, pre-trial supervision⁹ and relying on scientifically validated risk assessment criteria like employment history, family ties, previous records, has proved to be a better way of securing the attendance of the defendants at trials. Similar to these initiatives, it is imperative that we create a strong national conscience to revamp the existing Criminal Justice System in India.  In the spirit of being a welfare state, committed to socialism, the State needs to work towards bringing pretrial justice to the significant proportion of impoverished defendants brought before the criminal courts. One significant way through which the disparate impact and length of undertrial detention can be reduced, apart from repealing the money bail system, is through enforcing rules mandating release on the filing of a charge sheet along with a centrally sponsored public defenders programme that weeds out the overt or structural discrimination in the criminal justice system.¹⁰

List of citations and references.

1. Prison Statistics India 2014, National Crime Records Bureau, Ministry of Home Affairs, 2015.
2. The Socioeconomic Impact Of Pretrial Detention, Open Society Justice Initiative, 2010.
3. Code of Criminal Procedure, Section 2(a)
4. Code of Criminal Procedure, Section 436 – 450.
5. The Socioeconomic Impact Of Pretrial Detention, Open Society Justice Initiative, 2010
6. Kohler, Scott, “Vera Institute of Justice: Manhattan Bail Project”, Ford Foundation, 1962
7. Moti Ram v State of Madhya Pradesh, 1978 AIR 1594, 1979 SCR (1) 335; Hussainara Khatoon vs. Home Secretary,  1979 AIR 1369, 1979 SCR (3) 532
8. Krishnaswamy Sudhir, Bail Shishir, “Freeing the undertrial”, The Hindu, September 22nd, 2014.
9. Dewan, Shaila, “When Bail Is Out Of The Defendant’s Reach, Other Costs Mount, The New York Time, June 10th, 2015.
10. Krishnaswamy Sudhir, Bail Shishir, “Freeing the undertrial”, The Hindu, September 22nd, 2014

The author, Madhulika, currently studies law at Jindal Global Law School