India and Bail law

JUL 17

Mains   > Polity   >   Judiciary   >   Judicial Activism


  • The Supreme Court underlined that “there is a pressing need” for reform in the law related to bail and called on the government to consider framing a special legislation on the lines of the law in the United Kingdom.


  • In Blacks Law Dictionary, bail has been defined as security such as cash or bond especially security required by a court for the release of a prisoner who must appear at a future date.
  • Bail is devised as a technique for affecting the synthesis of two basic concepts of human values, namely the right of an accused person to enjoy his personal freedom and the public interest, subject to which, the release is conditional on the surety to produce the accused person in court to stand the trial.
  • 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.


  • The CrPC does not define bail, but the Indian Penal Code (IPC) categorises offences as ‘bailable’ and ‘non-bailable’.
    • The CrPC empowers magistrates to grant bail for bailable offences as a matter of right. This would involve release on furnishing a bail bond, without or without security.
    • Non-bailable offences are cognisable, which enables the police officer to arrest without a warrant. In such cases, a magistrate would determine if the accused is fit to be released on bail.
  • Normally, bail is to be granted if the person is not a flight risk and is not in a position to influence witnesses.
  • India also has a provision of anticipatory bail, for those apprehending arrest. In such cases, the person has to move court to get an order of anticipatory bail.


            The term ‘non-bailable’ does not 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.



  • Large number of undertrials:
    • According to NCRB report, undertrials accounted for 69.05% of India’s prison population. Many of these undertrial prisoners are the illiterate, poor and vulnerable sections. Having a definite law will enable many to avail bail.
  • Colonial legacy:
    • The code as it exists today is a continuation of the pre-Independence one with its modifications. Structurally, the Code does not account for arrest as a fundamental liberty issue in itself.
  • Arbitrariness:
    • The subject of bail belongs to the blurred area of the criminal justice system and largely hinges on the hunch on the bench, otherwise called as judicial discretion. But magistrate do not necessarily exercise their discretionary powers uniformly, which violates the idea of ‘equal treatment before law’.
  • Influence of conviction rates:
    • The abysmally low rate of conviction in criminal cases appears to weigh on the mind of the courts. (Eg: As per NCRB data, Heinous crimes like rape and murder have a very low conviction rate of 39% and 41% respectively.)
    • 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. This can be reduced if there is a law recognising bail as a “general right”.  
  • Indiscriminate arrests:
    • Even for cognisable offences, arrest is not mandatory and must be “necessitated”. However, investigating agencies fail to use the power of arrest sparingly. A new law can make the officials more accountable as they will be mandated provide definite reasons for rejection of bail.
  • Adopted in mature democracies:
    • Countries including US, UK, Australia & New Zealand have comprehensive laws that govern rules of granting and refusing bail.


  • The Supreme Court referred to the British law on bail, while asking the Centre to formulate a ‘Bail Act’.
  • The Bail Act of the United Kingdom, 1976, prescribes the procedure for granting bail.
  • One of the important aims of the legislation is “reducing the size of the inmate population”.
  • The Act recognises a “general right” to be granted bail. The act states that all defendants will be granted bail except for those charged with an imprisonable offence unless there exist substantial grounds.  
  • For rejecting bail, the prosecution must show that 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.
  • Other aspects of the legislation described involve bail conditions, bail with sureties, failing to surrender, police bail, and ensuring legal aid for defendants.


In a series of directions, the court asked the Centre to consider bringing a separate and comprehensive law to deal with bails, especially to make it a simple procedure.

  • Separate law for Bail: The court’s solution on the issues is the framing of a separate law that deals with the grant of bail.
  • On indiscriminate Arrests: The court noted that the culture of too many arrests, especially for non-cognisable offences, is unwarranted. It emphasised that even for cognisable offences, arrest is not mandatory and must be “necessitated”.
  • On insistence on bail application: There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code. These sections relate to various stages of a trial where a magistrate can decide on release of an accused.
  • Direction to states: The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.


Critics argue that the judgment does not tackle the principal problem, which is not a lack of guidelines but the fact that there are no consequences for officials who violate the existing bail guidelines. Hence, until the legislation is in place, the government and the courts should take proactive measures to improve the accountability of law enforcement agencies and judicial officers.


Q. Bail is essential to safeguard the fundamental right to liberty. In this regard, discuss the need of a bail legislation in India?