INTRODUCTION
Bail[1] is an essential legal procedure that must be carried out in compliance with the law. It represents the inalienable right to liberty guaranteed by criminal law and acts as a safeguard for individual liberties. The Indian Constitution’s Articles 19[2] and 21[3] further support bail as a basic right. Bail is the process of obtaining release from custody, either personally or with the help of sureties.
By freeing accused people from detention, the right to bail principle seeks to give them the freedom to go about their daily lives. Individuals are presumed innocent until found guilty. The concept of anticipatory bail expands on the lenient bail policies that Indian courts have embraced by offering protection before arrest. According to whether a crime is “bailable” or “non-bailable,” bail may be set.
HISTORY
Bail was first used in early civilisations such as the Greek and Roman empires and has since spread throughout the world. Its historical development incorporates allusions from numerous cultural eras, such as Plato’s endeavour to secure Socrates’ release in 399 BC. Modern bail laws developed from those in mediaeval England, and Manucci, an Italian traveller, noted that they existed throughout the Mughal era in India.
To be released from custody and ensure the accused’s appearance at trial, bail often entails the provision of assets as security. If the conditions are satisfied, the deposit amount is recovered but, non-refundable. Bail is set at the court’s discretion. It is frequently granted in some, but it can be difficult to get in others, particularly if the accused is likely to flee.
RIGHT TO BAIL AND ARTICLE 21
The ability to post bail is a crucial component of the Indian legal system since it follows the “innocent-until-proven-guilty” principle. The line between crimes that are eligible for bail and those that are blurred due to issues like police resistance, a lack of legal representation, and the right to a speedy trial, causes the poor to be detained for an extended period during investigations and court hearings.
In cases like Hussainara Khatoon v. State of Bihar,[4] where undertrials dragged on owing to poverty rather than guilt. Justice Bhagwati connected the right to a prompt trial with the bail procedure, which resulted in the release of people who had been detained past the predetermined period. The undertrials’ rights to their liberties were supported in judgements like Mantoo Majumdar v. State of Bihar.[5]
Despite efforts, there was little development, as was seen in Kadra Pahadiya.[6] The implied right to a prompt trial was confirmed by the court, together with its authority to see to it that this right was upheld. The SC made it clear that it may be contacted to safeguard Article 21 if personal liberty was violated and sought to hasten Bihar trials through institutional changes. Information on courts, disposal standards, and suitability for pending session matters were all requested by the court.
The necessity for free legal aid was brought to light by instances of unlawful detention in cases like Veena Sethi v. State of Bihar[7] and Sant Bir v. State of Bihar.[8] The Court recognised that the law was not applied equally and that it was its responsibility to uphold the rights of the weak.
Connecting the right to bail with the right to free legal assistance under the Constitution is essential to addressing these issues and defending the rights of the impoverished.
RIGHT TO FREE LEGAL AID AND RIGHT TO BAIL – ARTICLES 21 AND 22 READ WITH ARTICLE 39A
The original intent of Article 21 of the Constitution was to safeguard people from presidential actions that would rob them of their life and personal freedom without a court order. However, in Maneka Gandhi v. Union of India[9] -the SC broadened its application to cover protections from legislative measures as well. This meant that, according to the Court’s assessment, no law could restrict someone’s right to life or personal freedom without first following a fair, just, and reasonable process.
Through Hussainara Khatoon, concerning undertrials, it was seen that many were imprisoned because they were either uninformed of their right to request bail or lacked the resources to do so. The current bail system seems to favour people who own property. Although there was no specific constitutional right to free legal aid for those who were accused, Article 22(1) permitted consultation with a lawyer, and Article 39-A established the state’s obligation to offer such services at no charge.
However, the SC creatively interpreted Article 21 to establish that disadvantaged accused people should receive legal aid from the state because they are unable to pay legal representation due to poverty. The Court’s novel view further established that disadvantaged defendants have a constitutional right to free legal representation, in line with the concepts of justice and fairness.
RIGHT TO BAIL (SECTION 167(2) CR.P.C) AND DELAY IN INVESTIGATION
The Criminal Procedure Code (Cr.P.C.) section 167(2) requires law enforcement to complete their investigation and file the charge sheet within 60 or 90 days, depending on the circumstance. The accused is given a substantial entitlement, giving them the right to ask for release on bond if this deadline is exceeded.
Section 167(2) Cr.P.C. established a deadline for investigators to complete their work to ensure that the accused receives prompt attention from the criminal court system. This is consistent with the underlying tenet of Article 21, which ensures that every person facing an accusation has the right to an expeditious conclusion to their case.[10] However, section 167 has come under fire for focusing only on the investigation aspect and ignoring other elements of the criminal justice system, potentially undermining the goal of ensuring a swift trial.
Furthermore, it is believed that section 167(2) ironically grants freedom to some dangerous criminals who might not otherwise be eligible for bail due to the seriousness of their crimes. This calls into doubt the efficiency of section 167 of the Criminal Procedure Code in maintaining the values outlined in Article 21 of the Constitution.[11] It is essential to completely restructure the entire criminal justice system, as opposed to focusing on individual components, to effectively implement the right to a timely trial as stated in section 163(2) Cr.P.C.
CRITICISM
The bail system has an inherent financial bias, which is frequently criticised. The poor are disproportionately affected, whereas wealthy people can easily get their release. This practice raises moral questions regarding its feasibility because it effectively equates freedom with the capacity to pay. The Rudal Shah v. State of Bihar[12] is a prime example of the underprivileged are effected.
SUGGESTIONS
The Expert Committee on Legal Aid suggested in 1973 the categories of crimes that are subject to bail and those that are not. Based on crime nature, violence, penalty, societal impact, and alternative conflict settlement, the Malimath Committee recommended modifying Cr.P.C. Schedule I in 2003.[13]
Reforms could standardise the bail procedure, provide legal aid attorneys with training, and eliminate the use of cash bail. The 268th Law Commission Report (2017) placed a strong emphasis on reforming the bail system and urged socioeconomic analysis. For major offences, strict scrutiny is advised; in contrast, particular situations like tax evasion call for restricted bail. Reports on the victim’s impact and risk may be used to guide bail choices.
CONCLUSION
The fundamental right to personal liberty serves as the foundation for the concept of bail. This enables the granting of bail until an individual’s guilt is established, ensuring their presence at the trial. The right to bail should be made known to those who are ill, lack surety, risk lengthy imprisonment, or are otherwise unaware of it.
However, a thorough overhaul of the criminal justice system is necessary for a swift trial and little restriction on individual liberties. It is insufficient to rely merely on the deadlines for investigations outlined in section 167(2) of the Criminal Procedure Code.[14] Surprisingly, even for serious crimes for which bail would often be rejected, the accused automatically acquires a right to bail after the designated term. The benefits and drawbacks of section 167(2) should be weighed in light of its objective to guarantee a prompt trial under Article 21.
Therefore, the ability to set bail should be preserved to avoid injustice and improve the administration of justice. This strategy prevents persons who cannot afford legal representation for bail-related issues or bail itself from being wrongfully imprisoned.
Author(s) Name: Suchitra S Menon (Symbiosis Law School, Noida)
Reference(s):
[1] Black’s Law Dictionary, (9th ed. 2009).
[2] Indian Constitution. 1950, art. 19.
[3] Indian Constitution. 1950, art. 21.
[4] Hussainara Khatoon v State of Bihar, 1979 SCR (3) 532.
[5] Mantoo Majumdar v State of Bihar, 1980 SCR (2)1105.
[6] Kadra Pahadiya And Ors. Etc v State of Bihar, Case No. Writ Petition (crl.) 5943 of 1980.
[7] Veena Sethi v State of Bihar, (1982) 2 SCC 583.
[8] Sant Bir v State of Bihar, AIR 1982 SC 1470.
[9] Maneka Gandhi v Union of India, 1978 SCR (2) 621.
[10] Asim Pandey, Law of Bail Practice and Procedure, 2nd Edition, Lexis Nexis. p. 8. (2015).
[11] Janak Raj Jai, Bail Law and Procedures, 6th Edition, Universal Law Publishing (2015).
[12] Rudal Shah v. State of Bihar, 1983 AIR 1086.
[13] Hans Kumar, ‘A Critical Study of Bail Trends in India’ (2020) Palarch’s Journal of Archaeology of Egypt, 17(7).
[14] Soibam Rocky Singh, ‘Inconsistencies in the Bail System’, The Hindu (Delhi, 25 February 2019).
