Anti-poor bail law of india

How are the poor affected

The present laws prevalent in criminal law are based on the principles of colonial law left by the British
Government and are in some cases unfair to certain sections of the society. The bail law of India can be said
to be against the interests of the poor of the country and can be said to negatively affect and lower the
effectiveness of the law system for the poor. The term ‘bail’ can be loosely defined as the temporary release
of an accused person who is awaiting trial. In India a bail amount is set by the court which needs to be paid
before the release of the accused, this bail amount is a monetary sum which acts as guarantee for the
appearance of the accused in the court.

A bail hearing takes place in which the judge upon referring to the type of crime committed, past criminal
record of the accused, the likeness of the accused to move to avoid attending the court proceedings etc
determines the amount to be paid as bail money. The bail amount is paid directly to the jail clerk or through
legal bonds.

In India around 22 percent of the population lives under the global poverty line1, the ones above the poverty
line are also not entirely economically sufficient with the major portion of the population constituting the
lower middle class. Since a large portion of the Indian population is involved in small scale agriculture.
When faced with a situation to pay bail money, the only choice the poor have is to either mortgage their
agricultural land or to sell the land. This leads to severe economic hardships for the poor further pushing
them into the jaws of poverty. This money based bail system discriminates between rich and poor as rich can
easily pay the prescribed bail amount while the poor are left to rot in jail. This goes against the principle of
the legal system to treat every individual based on the principles of justice, equity, good conscience.

This is the reason why most of the under trials remain in jail instead of being out on bail. An 'undertrial’ is a
person who is currently on trial or who is imprisoned on remand whilst awaiting trial. On April 1, 1977, of a
total prison population of 1,84,169 as many as 1,01,083 (roughly 55%) were under-trials2. According to a
report released by the National Crime Records Bureau of the Government of India thousands of accused have
been incarcerated for a period of more than 5 years. 30.84% of prisoners in Bihar despite being accused,
without having the appropriate resources to get bail were left in jail, in some cases the prison period
exceeded that of the prescribed time for the offence if it were proved3.

Challenges faced by the under-trials

The current bail system is discriminative in nature and violates the basic principles of equity, justice and
good conscience on which the supreme law of India, the constitution is based on. Just as it can be inferred
from the National Crime Records Bureau report that there is a large number of undertrials in India who are

1
http://data.worldbank.org/country/india visited on 24 January 2017
2
Law Commission of India, 78th Report on Congestion of Under-Trial Prisoners In Jails (February,1979)
3
National Crime Records Bureau, Report: Period of Detention of Undertrial Prisoners (Ministry of Home Affairs,2009)
neglected for years and are left to suffer the physical and mental suffering of jail. In many cases the jail time
as an accused exceeded the maximum prescribed jail period for the crime the person was accused of. This is
because of a lack of coordination between the various different organs of the government, also the lack of
any surety to furnish the jail bonds for the poor they are left to suffer in prison. There have been cases in
which the bail amount was extraordinarily high due to the faulty system of calculating the bail amount. India
although follows a minimum standard for the treatment of prisoners4, the ground reality is harsh compared to
theory. The various challenges faced by an Indian prisoner are:

1) Prison Violence: Filled with various habitual offenders, prisons often pose danger to the ones they
hold. On march 2002 at saran district jail at chapra, five inmates were killed and several received
bullet injuries when crpf and military police attempted to quell riot caused by inmates5. In the case of
Sunil Batra v. Delhi Administration6, justice V Krishnaiyer of the honorable Supreme Court of India
issued a writ directing the jail authorities to abstain from physically harming any prisoners and the
prisoners should be provided with adequate medical and health facilities.
The worst incident of prison violence was witnessed in the Supreme Court case of Khatri & ors v.
State of Bihar7 in which 80 suspected criminals were blinded by puncturing with a needle. Jail for
first time offenders is very cruel as they are made to do all the menial tasks for the seasoned
criminals.

2) Health care: Health care facilities in Indian prisons are severally neglected. There are several health
issues existing in Indian prisons such as drug abuse, alcoholism, trauma, homicide, suicide, violence,
neuropsychiatric diseases, epilepsy, stress manifestations, HIV infection and AIDS, sexually
transmitted diseases, tuberculosis, etc. Prisons in India are extremely overcrowded facilities and
prisoners often are place in cramped conditions that leads to easier spread of infectious and
communicable diseases. Poor health conditions in prisons is thought of as inflicting punishment
twice, first by incarceration and by poor health facilities for the second time. But in the second case
punishment is also inflicted to family of the prisoners. These family members often suffer from social
and economic backwardness and thus are easily infected by the diseases carried by the prisoner after
release.

In a study published in Indian journal psychological medicine revealed that 9.6% inmates suffered
from acute upper respiratory tract infections and 5% from acute lower respiratory tract infections

4
UN standard rules for treatment of prisoners
5
http://timesofindia.indiatimes.com/city/patna/Govt-frees-Chapra-jail-from-prisoners-5-killed/articleshow/5395246.cms visited
on 27 jan 2017
6
1980 AIR 1579
7
1981 SCR (2) 408
 while 18% inmates had ascariasis. Diseases of musculoskeletal system and connective tissue
contributed to 8.7% of inmates. A total of 84% prisoners had anemia.8

3) Criminalizing effect: The phrase “It’s better to be alone than a bad company”9 holds true in the case
of Prison. With habitual criminals around the accused and lack of any effective method of separating
the inmates, leads to the criminalization of accused, young or first time offenders often making them
commit more heinous crimes.

4) Burden on families: Those accused who are unable to find a surety or pay for jail bonds belong to the
lower strata of the society and suffer from economic hardships. The accused prisoners are in most
cases breadwinners of their families, with the breadwinner behind bars the family is forced into
destitution with the children in high risk of indulging in delinquent activities as they are faced with
the stigma of the society. Taking advantage of the bad shape of the family the powerful sections of
the society exploit the situation fully, there exists a huge risk of rape and forced prostitution among
the daughters and wife of the accused in jail.
Many accused have found to be released from jail after found not guilty only to witness the sight of
their families being destroyed with wives and daughters working as prostitutes or their sons walking
the path of a habitual criminal.

5) Drug abuse: The life of prison is boring confined to the four walls of the jail with little to no
entertainment or chance of learning. Prisoners are often depressed and seek for a release from the
grim reality of their everyday repetitive life. Also a large portion of the jail population consists of
drug abusers, in such an environment the new prisoners are often tempted to try or are forced to
consume drugs which poses risk of addiction. Drug abuse may lead to various health issues which
may turn chronic due to neglect in prison.

6) Mentally ill prisoners: Mentally ill prisoners consists of a small portion of the prison population,
because of this they are generally ignored by the authorities and media. Being denied the
psychological help needed by the prisoners is a grave violation of human rights. Dull boring prison
environment leads to a stimulant in increasing the mental problems of inmates which can lead to
unstable mental behaviour such as suicide, violence etc.

7) Infringement of Right to speedy trial: Speedy trial which means reasonably expeditious trial, is an
integral part of the fundamental right to life and liberty enshrined in Art. 21of the Constitution of

8
Health status of the prisoners in a central jail of south India, Indian journal of psychological sciences, Year : 2013 Volume : 35
Issue : 4 Page : 373-377, Authors: Sunil D Kumar, Santosh A Kumar, Jayashree V Pattankar, Shrinivas B Reddy, Murali Dhar
9
George Washington, President, United States of India
 India. In the case of Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar10 justice Bhagwati
of the Supreme Court of India has recognized the right to speedy trial as an integral part of the
Constitution. This delay can be due to various reasons such as:
I. Inadequate number of judges and prosecutors
II. Systemic delays.
III. Absence or belated service of summons on witnesses.
IV. Presiding judges proceeding on leave.
V. Remands being extended mechanically due to lack of time and patience with the presiding
judge.
VI. Inadequacy of police personnel and vehicles which prevents the production of all prisoners on
their due dates.

Judicial stand

Voice against the discriminating bail system of India was for the first time raised by justice Krishna Iyer in
the 1977 Supreme Court case of State of Rajasthan v. Balchand 11. The accused in the given case was
convicted by the trial court. The accused in response of this went to appeal the High Court which acquitted
him. State of Rajasthan under Article 136 of the Constitution of India appealed through a special leave
petition. The accused was directed to surrender to the court. The accused filed for bail. Justice Iyer said that
while there is a tradition of bail, a time has come for the rethinking of the bail system and in most cases a
simple undertaking would serve the purpose.

In the 1978 Supreme Court case of Moti Ram & Ors vs State Of M.P12, justice Krishna Iyer observed that
“bail, 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 .. Failure to consider financial ability has generated much controversy in recent years, for
bail requirements may discriminate against poor people and certain minority groups who are thus
deprived of an equal opportunity to secure their freedom pending trial.” In the above given case a poor
mason was convicted. The apex court ordered to the Chief Judicial Magistrate to release the mason on bail
without providing any specifics as to sureties, bonds et cetera. The CJM assumed full authority and fixed Rs.
10,000 as surety and bond and refused to allow his brother from becoming surety as his property was in the
adjoin village. Moti Ram again appealed to the Supreme Court and Justice Iyer condemned the act of CJM
and said that judges should be more incline towards bail instead of jail.

Justice Krishna Iyer once again in the case of Maneka Gandhi v. Union of India13 raised his voice against the
unfair system of bail practiced in India when looked from the perspective of the lower strata of the society.
Even if the amount set is not high for some but a large portion of those brought before the courts are so poor
that they find it difficult to furnish such a small amount and are forced to remain in jails.

10
1979 AIR 1360
11
AIR 1977 SC 2447
12
1978 AIR 1594
13
AIR 1977 SC 2447
Suggestions to improve the situation

Justice Bhagwati of the honorable Supreme Court of India, in the case of Hussainara Khatoon & Ors vs
Home Secretary, State Of Bihar gave various points for the court to determine the likability of the accused to
flee if granted bail. These guidelines are:

1) The length of his residence in the community.

2) His employment status, history and his financial condition,
3) His family ties and relationships,
4) His reputation, character and monetary condition,
5) His prior criminal record including any record or prior release on recognizance or on bail,
6) The identity of responsible members of the community who would vouch for his reliability.
7) The nature of the offence charged and the apparent probability of conviction and the likely sentence
in so far as these factors are relevant to the risk of non-appearance, and
8) Any other factors indicating the ties of the accused to the community or bearing on the risk of
wilful failure to appear.

Suggestions for under-trial prisoners

1) Under-trial prisoners should be separated from convicted prisoners in jail facilities and if possible
separate jail facilities for the two be made. There should be further classification among the under-
trial prisoners to protect first time and petty offenders from habitual ones.
2) When investigation of the accused cannot be completed within 24 hours then section 167 of Criminal
Procedure Code shall be strictly followed by both the court and the police and proper investigation
must be made if any deviation from the law takes place.
3) Automatic extension of remands is unconstitutional as it is violates Article 21 of the constitution.
Mere convenience for the authorities cannot deny the constitutional rights guaranteed to a citizen of
India.
4) Adequate facilities for video conferencing should be encouraged and tried in all jails expanding from
the central jails to the district and sub district jails.
5) Increase in police personnel so as to complete investigation in time and to avoid delays.
6) The criminal courts should exercise their available powers under sections 30914,31115 and 25816 of
Criminal Procedure Code to implement the principal of the right to speedy trial. In cases that require
the jurisdiction of the High Court under section 482 of the Criminal Procedure Code and Articles
22617 and 22718 of the Constitution can be invoked seeking appropriate relief or suitable directions to
deal with and prvent delay in cases.

14
Power to postpone or adjourn proceedings

15
Power to summon material witness, or examine person present

16
Power to stop proceedings in certain cases

17
Power of High Courts to issue certain writs
 7) Adequate compensation to the victim in case of any violation of human rights or constitution must be
provided by the state.

The under-trials for petty crimes can be put up into reform homes instead of jails among habitual criminals.
Adequate literacy and skill development programs for uneducated or unskilled under-trials should be
introduced. The current system of bails should be modified so that the benefit of bail should not only be in
the hands of the few but should be available to the masses to prevent the accused from suffering the horrors
of jails.

18
Power of superintendence over all courts by the High Court