Historically, the purpose of bail pending trial in criminal cases are to avoid inflicting punishment upon an innocent person (who may be acquitted later) and to encourage the unhampered preparation of his defence. Bail is a procedure by which a judge or magistrate sets at liberty one who has been arrested or imprisoned, upon receipt of security to ensure the released prisoner’s later appearance in court for further proceedings. Trials may take years to complete, and if an accused is really to be presumed innocent, till proven guilty, then she or he should not be imprisoned till convicted, as a rule. Individuals with a history of violent crimes who could threaten witnesses, or people who are very likely to abscond and similar cases could be exceptions to the rule.
On August 13th, 2024, the Supreme Court of India ruled that the legal principle ‘Bail is rule, jail is an exception’ is applicable to offences even under special statutes like the Unlawful Activities (Prevention) Act, while granting bail to a man accused under the stringent anti-terror law. Earlier, on August 9th, 2024, the Supreme Court granted bail to Mr Sisodia, former deputy Chief Minister in the Delhi government, stating that ““on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial.” These are commendable decisions. But what is the reality for the vast majority of undertrials incarcerated in hundreds of jails across India?
A whopping 77% of all prisoners in India are undertrials. Barring a few states, the undertrial population of all states and UTs exceeds 60%.[i] The total prison occupancy at the end of 2021 was around 554,000, showing an increasing trend over the years. The total prison capacity was around 425,000, so there was overcrowding overall – with occupancy greater than 150% of capacity in some states like Delhi, Madhya Pradesh and Uttar Pradesh. This means tens of thousands of prisoners, many of whom may eventually be acquitted, are housed in inhuman, overcrowded conditions.
The newly introduced Bharatiya Nagarik Suraksha Samhita, mandates that a verdict in a criminal trial be delivered within 30 to 45 days. But in practice criminal trials even in petty cases may take 2 to 3 years, and more in serious cases. In March 2020, a Surat court acquitted 127 men of charges of terrorism, 20 years after their arrest! In 2014, the Supreme Court acquitted six people of the 2002 Akshardham terror attack charges after they had served a decade in prison. Comedian Munawar Faruqui, who was arrested for cracking jokes that allegedly hurt religious sentiments, had to be in jail for over a month because the sessions court and Madhya Pradesh High Court rejected his bail pleas.
Many poor people accused of crimes are also quite uneducated and certainly overwhelmed by the system. They are not able to pay for good quality legal assistance, insist on bail and get out of jail. The authorities routinely deny bail to people accused of political crimes. Ms Gulfisha Fatima, Khalid Saifi and others, arrested for protesting against the Citizenship Amendment Act in 2020, have still not been granted bail, after four long years! Their trials are not expected to commence in the near future. As we write, the Chief Minister of Delhi is still in jail, though he was allowed interim bail to campaign during the national elections in May 2024. If this is the case for a person who has the resources and political clout to fight, imagine the plight of others!
It appears that denial of bail is a cruel extra-legal punishment that the authorities regularly impose on political activists. Millions of poor people have suffered and continue to suffer for lack of bail. Since the Supreme Court of India has repeatedly upheld the legal principle that ‘Bail is rule, jail is an exception’ , we must demand that this principle be applied uniformly, and in fact facilitated for poorer detenus with legal aid at all levels. Expeditious trials in criminal cases also need to be ensured, as justice delayed is justice denied indeed! 716 words
[i] https://indiajusticereport.org/ India Justice Report 2022
By BA and Venkatesh Sundaram
