The right approach

General Studies Paper 2

CONTEXT

• Bail should not be denied merely because police object to it strongly and Courts should adopt a clear-headed and common-sense approach while considering the grant of bail, and should eschew the tendency to keep someone in prison merely because the police oppose bail with great vehemence.

DEFINING BAIL

• A bail is a legal procedure granted to an accused before their trial in court.
• Through the means of this legal agreement, an accused can pay a sum of money to the court in the assurance of their presence in court on the decided date and time.
• Bail is considered an important criminal procedure in democratic countries like ours.

TYPES OF BAIL (IN INDIA)

• The Indian Constitution has a provision that offers every accused a fundamental right to apply for bail. It can be offered to the accused after determining the seriousness of their offence. Here are the types of bail in India.
• Interim Bail: This is a temporary bail where the higher court calls for documents before a final decision regarding the bail application can be taken. After getting the documents, the higher court can decide if the accused will get permanent bail, an extension of the interim bail, or if the bail application will be completely rejected.
• Regular Bail: This type of bail is granted to a person who is in police custody. People who are accused of minor offences (criminal or civil in nature) usually apply for this type of bail. People can apply for regular bail under sections 437 and 439 of CrPC.
• Anticipatory Bail: This type of bail is granted by the Session Court or High Court, under section 438 of CrPC. Any person who believes that he/she will be arrested for a non-bailable offence can apply for anticipatory bail.

LEGAL POSITION OF BAIL

• Article 21 of Indian Constitution: Article 21 of the Constitution of India guarantees the protection of life and personal liberty to all persons.
• It guarantees the fundamental right to live with human dignity and personal liberty, which in turn gives us the right to ask for bail when arrested by any law enforcement authority.
• Section 438 of Code of Criminal Procedure in 1973: The provision of anticipatory bail under Section 438 was introduced in the Code of Criminal Procedure in 1973.
• The term ‘Bail’ has not been defined under the Criminal Procedure Code, 1973.
• Only the term ‘Bailable Offence’ and ‘Non-Bailable Offence’ has been defined under Section 2(a).
• It is based on the recommendation of the Law Commission of India, which in its 41st report recommended the incorporation of a provision of anticipatory bail.
• Universal Declaration of Human Rights under Article 11: The Bail provision, especially anticipatory bail, is based on the legal principle of presumption of innocence which means that every person accused of any crime is considered innocent until proven guilty.

SIGNIFICANCE OF BAIL PROVISIONS

• Bail is an essential element of any criminal justice system, as it guarantees the right to a fair trial for the accused.
• It is needed to safeguard the fundamental right to liberty, as mentioned under Article 21 “No person shall be deprived of their liberty unless prescribed so by a reasonable, fair, and just procedure”.
• According to the Supreme Court of India, Bail is a measure to balance the personal freedom of the accused and the public interest. Therefore the release is conditional.

WAY FORWARD

• Bail is a mechanism that secures liberty to the accused without providing any unjustified benefit to them. However, it has been scrutinised that the practice of granting bail is quite irregular and unclear.
• There are several judgments where the Supreme Court has observed that each case needs to be examined for its facts and circumstance before granting bail.
• The rationality behind granting or refusing bail petitions must be to establish a balance between individual rights and the interest of society.