Bail legislation

THE Supreme Court’s suggestion to enact legislation specifically meant for grant of bail, as in the UK, needs serious consideration and a wide debate. The key features of UK’s Bail Act are aimed at reducing the size of the inmate population and provisions for ensuring legal aid for defendants. For the apex court, the pressing need for a law that restrains the arrest of the accused unnecessarily, ‘indicative of a colonial mindset and creating an impression of a police state’, is primarily based on statistics that are startling. More than two-thirds of prison inmates are undertrials, and the majority may not even be required to be jailed despite being charged with cognisable offences punishable for seven years or less. Most are not only poor and illiterate but include women, allowing, as the Bench reminded, a culture of offence to be inherited.

The reiteration that bail is the rule and jail an exception came with a rap for lower courts for letting the abysmally low rate of conviction in criminal cases weigh on the mind while dealing with bail applications — in other words, deciding on pleas strictly in a negative sense and contrary to legal principles, because of the strongly-held belief that conviction is a rarity. Eventually, acquittal after years of continued custody can become a case of grave injustice. Another reason cited for a Bail Act is to ensure that magistrates exercise their discretionary powers uniformly.

The significant guidelines include disposal of bail applications within two weeks, except if the provisions mandate otherwise, and pleas for anticipatory bail within six weeks, with the exception of any intervening application. The stress on the mandatory recording of the reasons for arrest in writing, to enable the magistrate to examine the necessity of arrest and continued custody, assumes significance in the wake of the pendency of bail pleas, including those of activists and journalists.  

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