Anti-poor bail system in India

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The NCRB statistics of 2016 which was released in 2019 shows that more than 67 per cent of 4.33 lakh inmates lodged in 1,400 jails in the country are undertrials. It is a common feature for undertrial prisoners to stay in prison for over ten years, before being acquitted. In other occasions, prisoners spend more time in jails as undertrial prisoners than they do as convicted prisoners.  A big part of these undertrial prisoners are people who waste away their precious years in jail for not being able to afford bail.  Which feels like a speck of dust to the rich people. This system is known as anti-poor bail system and is prevalent in many countries.

The aforementioned problem was identified as early as 1973 by Justice Krishna Iyer in a Law Commission report[i] where he opined that the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their financial inability while the wealthier persons, would be able to secure their freedom because they can afford to furnish bail. This premise still holds true forty-five years later, with the Law Commission report of 2017 stating that that over 70 per cent of the 2.31 lakh accused in the country’s jails are either illiterate or semi-literate.  These people are most likely to be involved in low paying jobs and would be unable to pay bail.  

Even the Supreme Court in various judgements has identified how the current bail system is discriminatory towards poor and violates Article 21 and Article 14 of the Constitution. According to the Supreme Court, asking a poor man to furnish an excessive bail amount is as good as refusing bail to him.[ii]  In this regard two initiatives were taken by the Judiciary.

The Supreme Court declared Section 39-A of Indian Constitution to be a fundamental right.[iii]  Under the section, people unable to afford lawyers are entitled to get free legal aid. This provision can be used by them in two ways: prove their innocence or acquire bail. However, it is very difficult to find lawyers who undertake such services due to the lack of monetary incentives.[iv] Therefore, for many poor undertrial prisoners this is not an option.

Secondly, s. 436A was added to the Criminal Procedure Code, based on the recommendations of Supreme Court Legal Aid Committee Representing Undertrial Prisoners. This section provides that if the accused person has undergone detention for half the maximum period of imprisonment specified for the offence that he has been charged with, such an accused shall be released by the court on personal bond with or without sureties. In order to ensure implementation, Supreme Court in Bhim Singh v. Union of India, directed the jurisdictional Magistrate to hold one sitting per week in each prison for two months from October 1, 2014 to identify under-trials eligible for bail under sec. 436-A of Cr.P.C and to pass an appropriate order with respect to sec. 436-A of Cr.P.C in the jail itself. It directed the Jail Superintendent of each prison to facilitate the process. However, an Amnesty International study from the same year revealed that out of 154 prisons there have been 82,334 instances between September 2014 and February 2015 when undertrials were not produced in court for want of police escort.[v]

The failure of these two mechanisms translates to agony for the undertrial prisoners, having far reaching consequences than just the jail term. It percolates down to the socio-economic status of their family, for having a family member in jail and not having a hand to feed them. A true democracy should not have a system that enables discrimination between the rich and the poor and it is the duty of the State to ensure fast and fair trials .

[i] 154th Report by Fourteenth Law Commission of India, The Code of Criminal Procedure, 1973 (1996), Vol. I & II.

[ii] Nanu Gordhan v State of Gujurat

[iii] Dineshbhai Dhemenrai v State of Gujurat,




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