The cart before the horse: on bail law in India

Two recent statements, one a court order and the other a public speech by the Chief Justice of India (CJI), have drawn attention to how bail law works in the country. While the Supreme Court, in Satender Kumar Antil vs. CBI, sought to broaden the scope of granting bail to those arrested without sufficient cause, the CJI, NV Ramana, lamented the interference with personal liberty caused by hasty arrests, obstacles to release on bail of suspects and prolonged incarceration of those on trial. The expressions of concern are a timely reminder to regimes that have used their police powers to suppress critics, activists and those not politically aligned with them. However, there is an irony in the fact that courts uphold personal liberty and deplore indiscriminate arrests on the one hand, but routinely deny bail or postpone bail hearings on the other. Nevertheless, the verdict reiterating the broad principles in favor of granting bail and setting out constructive guidelines for arrest is very valuable. For example, the Court has called for standing orders to adhere to the principles of Arnesh Kumar (2014), based on Sections 41 and 41A of the Code of Criminal Procedure under which a police officer is required to record the reasons for arrest of an accused and is supposed to issue a summons to appear in cases involving offenses punishable by imprisonment for less than seven years.

The verdict has other positive aspects: setting time limits for the consideration of applications for bail and early release and emphasizing that an arrest should only be made when it is really necessary, or to prevent the accused flee justice or tamper with evidence. In an interesting contribution, the Bench proposed a separate ‘Bail Act’ modeled on the UK’s to streamline the bail process. It is indeed true that although the basics of bail law are well known, in particular that bail is the rule and its refusal the exception, there are glaring inconsistencies about who gets bail, who refuses and at what stage it is granted. A separate law may provide a common point of reference, but if it ends the country’s undeclared rule, “show me the man, and I’ll show you the law,” it will fade forever. The state of the judiciary also requires an overhaul. Magistrates seem conditioned to allow mechanical pre-trial detention whenever someone is brought before them, and to deny bail whenever the prosecutor objects. Therefore, it is indeed welcome that the Court clarified that bail can be considered even without a formal application at the production stage in court, or when a person responds to a summons or warrant. More than the law, the police must first put an end to the practice of arresting by reflex first and then fishing for a possible offence.