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Right to Bail and Reform

Socio Legal Corp

Last Updated on July 31, 2021 by Administrator

Written By – Rihan Shareef

Bail is the release of an arrested person on certain conditions such as surety. The necessity of bail should be understood primarily on two grounds. One, that no person should be treated as a criminal unless convicted as a criminal in a court of law. Second, the larger constitutional safeguards of Article 21 which guarantees all citizens the right to life and liberty, although subjected to procedure established by law. Hence the intended reason for bail is to ensure that a person accused of a crime does not flee way from the process of justice.

The circumstances in which bail can be granted is provided in section 436 of the CrPC. There is two-fold classification of offences with regard to bail – bailable and non-bailable offences. Bailable offences are those in which the bail is a matter of right if the conditions required are met. Non-bailable offences contrary to layman understanding is not offences which one cannot attain bail, but cases in which bail subject to Court’s decision. The court has the power to decide whether the accused should be granted bail or not. Section 438 of the CrPC even allow High Courts to grant anticipatory bail if a person suspect that they might be arrested for a non-bailable offence.

Through this we can understand, bail is the norm and not jail. This is well laid in a judgement of the Supreme Court in which it said that detention should be seen as curbing fundamental right to life and liberty as the idea of arrest is only to secure the person.[1] As the idea of detention is before trial is not punish the accused, it is necessary to grant bail.

In light of the necessity of bail and protections guaranteed under fundamental rights, a person can their bail application to the High Courts under article 226 and Supreme Court under article 32. As these are constitutional guarantees given to every individual on violation of any of the fundamental right which is article 21 in this case.

Need for Reform

While the constitutional backing, statutory provisions and Supreme Court’s jurisprudence for bail has stood for liberty by large. The reality of the matter is however quite different and astonishing. A surprising finding is that 68% of the prisoners inside Indian jails are those who are under-trial and some of them are jailed without a single chargesheet. [2]Assuming that a certain number of people in this category cannot meet the condition of bail. Still a large number of people are detained in complete violation of their fundamental right. To make matters worse, around two out of the three prisoners are coming from the Scheduled Tribes, Scheduled Caste, and the Other Backward Classes. Some of them are unaware about their rights and have not even filed an application for bail!

Another worrisome aspect is the Supreme Court transferring of cases towards the High Courts in regard to some applicants and listening to matter in certain other applicants. It is

worrisome especially because article 32 is a constitutional guarantee. It is guaranteed to all citizens by the constitution, and Supreme Court as the highest Constitutional Court in performance its duty to protect fundamental rights and the Court has been denied citizens for it. One among the many such instances was of Kerala journalist who was asked to put the matter in the High Court instead of Supreme Court. There are instances in High Court where there has been a delay in the listing of bail applications for over a year.

The conscious of legal fraternity and social activists went into shock when activist Stan Swamy died due health conditions while his medical bail was being denied multiple times. The bail could have saved his life which only required following the precedent of Varavara Rao bail which is extremely similar to this. A widespread view is that courts are not following their own precedents and handling bail matters arbitrarily, by treating similar cases differently.


In conclusion, we have seen how although the laws have given an important position for liberty. It remains an unfulfilled value for a large number of people who are accused of crime. The necessity is for the Court to strictly follow its own previous judgements and give the priority it deserves in hearing of the cases. This is particularly important because of number of false charges and low conviction rate in India. There are thousands of innocent citizens living behind the bars for years and sometimes decades.

[1] Sanjay Chandra v. CBI, 2011 SCC OnLine SC 1503

[2] India Justice Report 2020, Tata Trusts

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