New DelhiThe Supreme Court on Monday proposed introducing a comprehensive bail law to deal with the increasing pendency of bail applications in India, and discussed how such laws are enforced in other jurisdictions, including the UK and the US.
A division bench of Justice Sanjay Kishan Kaul and Justice MM Sundaresh said that the central government “may consider the introduction of a special Act in the nature of a Bail Act”.
The court was considering petitions seeking clarification on an order pass In October 2021, which classified different types of bail. In India, the Code of Criminal Procedure (CrPC) is the primary law that deals with the law on bail.
The CrPC does not define bail, but the Indian Penal Code (IPC) classifies offenses as ‘bailable’ and ‘non-bailable’. For the former, the CrPC empowers magistrates to grant bail to an accused, with or without bail, conditional on the binding of bail, in case of authority.
Non-bailable offenses are cognizable offences, where the police can arrest without warrant, and the magistrate determines whether the accused is eligible to be released on bail.
Generally, bail is granted if the person is not a flight risk and is not in a position to influence witnesses.
India also has provision Anticipatory bail, for those fearing arrest. In such cases, the person has to approach the court to obtain an anticipatory bail order.
When the Department of Legal Affairs asked the Law Commission about the need for a separate bail law in India in 2015, the commission concluded that it was not needed.
In a detailed order accessed by ThePrint, the Supreme Court on Monday discussed bail laws in various countries, including the United Kingdom and the United States.
It traced the development of bail law in India and earlier Supreme Court rulings that “bail is the rule, jail is the exception”.
presumption of innocence
The apex court on Monday took note of the low conviction rate in criminal cases and said that because the chances of punishment are “close to rare”, bail applications are often decided strictly contrary to the legal provisions. The slim chances of a final conviction can then force the court to detain the person for a longer period of time, denying bail.
Citing his 2020 SC verdict in the Journalist Arnab Goswami caseThe Supreme Court emphasized the role of the trial court as “guardian angels of liberty” and said: “It is the sacred duty of the criminal court to zealously defend and have a coherent vision in defense of constitutional values and ethos.”
Goswami was protected from arrest when he moved the SC to club several cases filed against him in connection with one of his TV shows.
In its Monday judgment, the bench discussed how foreign jurisdictions, unlike India, have codified bail laws. It referred to the Bail Acts in the UK and US, which it said contained adequate guidelines for both investigative agencies and courts.
It suggested that the Indian government frame a uniform comprehensive bail law after considering all aspects of a criminal trial, and “hope” that its proposals will be taken “in true earnest”.
The law should consider the most fundamental principles, such as presumption of innocence, the bench recommended. This, it explained, was necessary because various laws in India have a “statutory bar” on bail. Some of the examples mentioned in the judgment are the stringent anti-drug laws (Narcotic Drugs and Psychotropic Substances Act, 1985) and the Bihar Prohibition and Excise Act, 2016.
The court directed subordinate judiciary across the country to dispose of bail applications in a time bound manner – preferably between two to six weeks.
In its Monday verdict, the SC said that bail has been recognized as a right in all countries. Citing several judgments on bail petitions from across the world, it said that despite special provisions in other countries, the courts there presuppose innocence and pass orders in favor of the accused.
“The situation in India is no different,” the bench said.
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The trend towards streamlined legislation – US and UK
United Kingdom made a special act bail act in 1976, which the SC said followed a “simple procedure” and granted bail to all to whom it applied, except as provided in Schedule 1 of the Act.
Schedule 1 provides for various contingencies and factors including the nature and continuance of the offence. In the UK, bail is based on cash deposits and specified restrictions on personal liberty.
In the United States, the Constitution prohibits “excessive bail”.
eighth amendment The United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment shall be imposed.” This amendment prohibits the federal government from imposing unreasonably harsh punishments on criminal defendants, either as the cost of obtaining a pre-trial release or as punishment for a post-trial crime.
30 years ago, the US Supreme Court indicated a nod to the liberty of the accused. The court had said, “In our society, liberty is the norm, and detention before or without trial is a carefully limited exception.”
In all crimes against the United States, that is, federal criminal proceedings, release and detention are governed by the Bail Reform Act of 1984, which contains guidelines that must be followed with regard to detention and release.
1987 . In Case Including Mafia member Anthony Salerno – where the Supreme Court held the 1984 Act to be constitutional – the bench held that the Constitution does not include the right to bail, but does prohibit the imposition of exorbitant bail amounts.
countries in the caribbean
In 2018, a report good Impact Justice – a reform project funded by the Government of Canada – noted that in the Caribbean region, only four countries had laws for bail.
These were Trinidad and Tobago, Barbados, Jamaica and St. Kitts and Nevis. When the report was published, Dominica and Antigua and Barbuda had also introduced similar legislation, and it was pending with their parliaments.
Antigua and Barbuda advance perform Its Comprehensive Bail Act in 2019, while Dominica did so in 2020.
While other countries in the region, such as St. Lucia, have similar provisions in their criminal law, they Shortage A well-organized ‘special’ law for bail.
All these acts are broadly modeling and is based on the Bail Act of the United Kingdom.
New Zealand and Sri Lanka
Enacted more than two decades ago, New Zealand bail law Prescribes all the rules governing the granting or denial of bail. Even though the Act recognizes bail as a right for most offences, it makes exceptions for specific offenses such as domestic violence and assault on children.
Closer to home, Sri Lanka’s Bail Act, is enacted 1997, which provides for bail as a ‘rule’, refusing to grant it as an ‘exception’. However, the provisions of this Act do not apply in cases where a person is an accused or an offense under the country’s anti-terrorism law.
New South Wales, Australia and others
Australian state of New South Wales in 2013 starring A Comprehensive Bail Act to replace the 1978 law, which was considered “”.ground breakingIn those days. This new law added the concept of “unacceptable risk” to bail cases, referring to whether the accused would fail to appear in the proceedings, commit a serious offence, or accompany the victims, society or evidence. This was in addition to the existing provisions which restricted bail.
At the federal level, Australia has similar specifics. Legislation, enacted nearly three decades ago, which provides for grant of bail, except in certain cases, such as specific offenses or while serving a prison term. The law also stipulates the conditions and undertakings for the person to whom bail is granted.
Other examples include Mauritius and Malawi, which have enacted such comprehensive bail acts. 1999 And 2000respectively.
Akshat Jain is a student of National Law University, Delhi and intern at ThePrint
(Edited by Polomi Banerjee)
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