Explained: The laws governing bail in India and what changes does the Supreme Court want


There can never be an impression that India is a police state, the Supreme Court noted on Monday, calling for the Union Government to introduce a special enactment in the nature of a “Bail Act” to streamline the grant of bail.

A bench of Justices SK Kaul and MM Sundresh in a judgment referred to bail laws in countries like the United Kingdom and said, “We believe there is a pressing need for a similar enactment in our country. We do not wish to say anything beyond the observation made, except to call on the Government of India to consider the introduction of an Act specifically meant for granting of bail as done in various other countries like the United Kingdom.”

The suggestion to enact a bail law assumes significance in wake of the pendency of bail pleas of several trial prisoners including activists, political leaders and journalists.

We take a closer look on what the existing laws on bail state and what the top court is suggesting.

What the top court said

The matter came up in the Supreme Court as it was delivering its verdict in the Satender Kumar Antil versus Central Bureau of Investigation (CBI) case. It noted then that “jails in India are flooded with undertrials.”

“The statistics placed before us would indicate that more than two-thirds of the inmates of the prisons constitute undertrial prisoners. Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognisable offence, being charged with offences punishable for seven years or less. They are not only poor and illiterate but also would include women. Thus, there is a culture of offence being inherited by many of them,” Justices SK Kaul and MM Sundresh were quoted as saying by LiveLaw.

It underlined that “bail is the rule and jail is an exception” and called for the government to consider framing something like a ‘Bail Act’ to streamline the process of granting bail.

The apex court also came down heavily on lower courts in dealing with bail applications in the backdrop of an “abysmally low” conviction rate.

“The rate of conviction in criminal cases in India is abysmally low. It appears to us that this factor weighs on the mind of the court while deciding the bail applications in a negative sense. Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature with that of a possible adjudication by way of trial. On the contrary, an ultimate acquittal with continued custody would be a case of grave injustice,” the court was quoted as saying.

The judges suggested that bail applications should be disposed of within two weeks and pleas for anticipatory bail should be decided within six weeks.

The bench also said that investigating agencies and their officers are duty-bound to comply with section Section 41-A of the Criminal Procedure Code (Notice of appearance before police officer). The top court said any dereliction has to be brought to the court’s notice, followed by proper directions and non-compliance would entitle the accused to grant bail.

It further directed all state governments, Union Territories and high courts to file status reports in four months.

What is the UK law the SC mentioned?

The Supreme Court referred to the British law on bail, while asking the Centre to formulate a ‘Bail Act’. A key feature of the Bail Act of the United Kingdom, 1976 is “reducing the size of the inmate population”. The law also has provisions for ensuring legal aid for defendants.

The act states that all defendants will be granted bail except for those charged with an imprisonable offence unless substantial grounds exist for believing the defendant on bail would not surrender to custody, would commit an offence while on bail, or would interfere with witnesses or otherwise obstruct the course of justice; unless the defendant must be detained for his own welfare or protection; or in other circumstances.

The grounds for refusing bail to defendants charged with non-imprisonable offences are more limited. Other aspects of the legislation described involve bail conditions, bail with sureties, failing to surrender, police bail, and legal aid. It is too early yet to determine whether the act has reduced the number of detained defendants.

What do our current laws say?

Bail is a fundamental aspect of any criminal justice system and the practice of bail grew out of the need to safeguard the fundamental right to liberty.

In India’s legal world, the term offence has been categorised as bailable offences and non-bailable under the Code of Criminal Procedure.

As defined in Section 2(a), “‘bailable offence’ means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; ‘non-bailable offence’ means any other offence.”

The term ‘non-bailable’ doesn’t imply that bail can’t be granted at all. It simply means that the accused can’t claim it as a matter of their right at the time of the arrest or custody. But they can approach the court when while they are under trial. In non-bailable offences, it’s the court’s discretion to grant bail to the accused. And the same must be decided judiciously and not whimsically.

With inputs from agencies

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Explained: The laws governing bail in India and what changes does the Supreme Court want
Explained: The laws governing bail in India and what changes does the Supreme Court want
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