Bail not Jail
a campaign to review bail systems of India
Justice as we know was a right fundamental to all, but it's fallacy is evident, as money now results in its fall
Objectively analyzed the criminal jurisprudence adopted by India is a mere reflection of the Victorian legacy left behind by the Britishers. The passage of time has only seen a few amendments once in a while to satisfy pressure groups and vote banks. Probably no thought has been given whether these legislations, which have existed for almost seven decades, have taken into account the plight and the socio-economic conditions of 70% of the population of this country which lives in utter poverty. India being a poverty stricken developing country needed anything but a blind copy of the legislations prevalent indeveloped
The concept of bail, which is an integral part of the criminal jurisprudence, also suffers from the above stated drawbacks. Bail is broadly used to refer to the release of a person charged with an offence, on his providing a security that will ensure his presence before the court or any other authority whenever required.
Meaning of Bail
Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. The monetary value of the security, known also as the bail, or, more accurately, the bail bond, is set by the court having jurisdiction over the prisoner. The security may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security. The law lexicon defines bail as the security for the appearance of the accused person on which he is released pending trial or investigation.
Courts have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is usually refused when the accused is charged with homicide.
What is contemplated by bail is to "procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court." 
A reading of the above definition make it evident that money need not be a concomitant of the bail system. As already discussed above, the majority of the population in rural India, lives in the thrall of poverty and destitution, and don't even have the money to earn one square meal a day. Yet, they are still expected to serve a surety even though they have been charged with a bailable offence where the accused is entitled to secure bail as a matter of right. As a result, a poor man languishes behind bars, subject to the atrocities of the jail authorities rubbing shoulders with hardened criminals and effectively being treated as a convict.
History of Bail
The concept of bail can traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. The modern bail system evolved from a series of laws originating in the middle ages in England.
Evolution in England
There existed a concept of circuit courts during the medieval times in Britain. Judges used to periodically go ?on circuit? to various parts of the country to decide cases. The terms Sessions and Quarter Sessions are thus derived from the intervals at which such courts were held. In the meanwhile, the under trials were kept in prison awaiting their trials. These prisoners were kept in very unhygienic and inhumane conditions this was caused the spread of a lot of diseases. This agitated the undertrials, who were hence separated from the accused. This led to their release on their securing a surety, so that it was ensured that the person would appear on the appointed date for hearing. If he did not appear then his surety was held liable and was made to face trial. Slowly the concept of monetary bail came into existence and the said undertrials was asked to give a monetary bond, which was liable to get forfeited on non-appearance.
In The Magna Carta, in 1215, the first step was taken in granting rights to citizens. It said that no man could be taken or imprisoned without being judged by his peers or the law of the land.
Then in 1275, the Statute of Westminster was enacted which divided crimes as bailable and non bailable. It also determined which judges and officials could make decisions on bail.
In 1677, the Habeas Corpus Act was added to the Right Of Petition of 1628, which gave the right to the defendant the right to be told of the charges against him, the right to know if the charges against him were bailable or not. The Habeas Corpus Act, 1679 states, "A Magistrate shall discharge prisoners from their Imprisonment taking their Recognizance, with one or more Surety or Sureties, in any Sum according to the Magistrate's discretion, unless it shall appear that the Party is committed for such Matter offenses for which by law the Prisoner is not bailable."
In 1689 came The English Bill Of Rights, which provided safeguards against judges setting bail too high. It stated that "excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. Excessive bail ought not to be required."
In 1976 the Bail Act 1976 came into force. It sets out the current and the basic legal position of bail prevailing in England. It lays out that there is a general right to bail, except as provided for under the First Schedule of the Act. While there are different grounds for refusing the right to bail depending on the type of offence, for all imprison able offences the two basic grounds are as set out by the O'Callaghan decision. But there is also the additional ground that if the court is satisfied that there are "substantial grounds for believing" that the defendant if released on bail will commit an offence while on bail, bail may be refuse.
Under section 5(3) of the Bail Act 1976 the court which withholds bail is required to give reasons, so that the defendant can consider making an application. In practice, however, the reasons given by English courts on a variety of standard forms are frequently short and not explicitly based upon particular facts and factors. Stone's Justices' Manual suggests that magistrates announce any decision to refuse bail merely by relating the grounds and statutory reasons in short form.
English administrative law also requires that, where there is an existing obligation to give reasons for a decision, the reasons given be clear and adequate, and deal with the substantial issues in the case.
The English courts use tick boxes for recording the grounds and the reasons for not granting bail. There is a use of a standard pattern that which lists out the various reasons for not granting the bail. These forms vary in their precise configuration, but in substance they are all the same as all of them set out the grounds for refusing bail in one column, and a number of possible reasons for the findings those grounds established in another column. The decision is recorded by ticking the relevant box in each column. But the decisions recorded on standard forms might be at risk of being characterised as "abstract" or "stereotyped", and therefore inadequate. The quality of the reasons given directly reflects the quality of the decision-making process.
Evolution in America
According to the San Francisco News and the SF Chronicle, the first modern Bail Bonds business in the United States, the system by which a person pays a percentage to a professional bondsman who puts up the cash as a guarantee that the person will appear in court, was established by Tom and Peter P. McDonough in San Francisco in 1898. Infact, this was the same year that the Bill of Rights was introduced in England, and the Congress passed the Judiciary Act. This specified which types of crimes were bailable and set bounds on a judge's discretion in setting bail. The Act states that all non-capital crimes are bailable and that in capital cases the decision to detain a suspect, prior to trial, was to be left to the judge. In 1791 The Bill Of Rights was incorporated into Constitution of the United States, through the 5th, 6th and 8th Amendments, guaranteeing citizens the right to due process of law, a fair and speedy trial and protection against excessive bail. The Eighth Amendment to the Constitution of the United States provides that "excessive bail shall not be required," but it does not provide any absolute right to bail.
Under current law, a defendant has the right to bail unless there is sufficient reason not to grant it. The main reasons for refusing bail according to the Bail Act 1976 are that there are substantial grounds for believing that the defendant (1) will abscond; (2) will commit further offences whilst on bail; or (3) will interfere with witnesses. Conditions may be applied to the grant of bail, such as living at a particular address or, rarely, paying an amount into court or having someone act as surety. Release on bail is sometimes referred to as police bail, where the release was by the police rather than by a court.
The alternative to being granted bail is being remanded into custody (also called being held on remand).
In America, every accused person is entitled to a hearing at which evidence relevant to his individual case is considered to determine the amount of bail necessary. No precise rule can be laid down that will determine the amount of bail required in any particular instance. Bail is to be fixed according to the circumstances of each case. The matter is generally one for the sound discretion of the trial court. Although the determination of the trial court is subject to the review in the appellate courts for abuse of discretion, ordinarily the appellate courts will not interfere if the amount set by the trial court is reasonable and not excessive.
The amount of a bond should, of course, be sufficient to assure the attendance of the defendant upon the court when it is required. The bond should be fixed in such amount that will exact vigilance on the part of the sureties to see that the defendant appears in court when called.
Both the Federal Constitution and state constitutions contain provisions against excessive bail. Bail set at an amount higher than reasonably calculated to insure that the accused will appear to stand trial and submit to sentence if convicted is excessive, and falls within the proscription of the Federal Constitution if set by a federal court, or of the particular state's constitution if set by a state court. But no hard-and-fast rules for determining what is reasonable bail and what is excessive bail have been laid down. That the bail is reasonable which, in view of the nature of the offense, the penalty attached to the offense, and the probability of guilt of defendant, seems no more than sufficient to secure attendance of the defendant.
The amount of bail, in and of itself, is not finally determinative of excessiveness. What would be reasonable bail in the case of one defendant may be excessive in the case of another. As indicated below, such matters as the past criminal record of the defendant, and the nature of the crime committed and the punishment therefore, are material factors in determining whether bail is excessive.
Where two or more cased are pending against a defendant, the fact that bail in one case, considered by itself, is reasonable, does not prevent the collective amount required in the several cases from being excessive.
The gist of the problem confronting a court in setting the amount of bail is to place the amount high enough to reasonably assure the presence of defendant when it is required, and at the same time to avoid a figure higher than that reasonably calculated to fulfill this purpose, and therefore excessive. The general rule in federal courts is to try to strike a balance between the need for a tie to the jurisdiction and the right to freedom from unnecessary restraint before conviction, under the circumstances surrounding each particular accused. In other words, in determining the amount of bail, the good of the public as well as the rights of the accused should be kept in mind.
The Bail Reform Act of 1966 provides for the release of defendant on his personal recognizance or upon execution of an unsecured appearance bond in an amount specified by the judicial officer before whom he appears, unless the officer determines, in the exercise of his discretion, that such release will not reasonably assure the appearance of defendant as required, in which event specified conditions of release which will reasonably assure defendant's appearance for trial may be imposed. The Bail Reforms Act, 1966 was initiated by President Johnson who felt that under the Federal Rules, bail in an amount higher than reasonably calculated to be necessary to assure the presence of the accused is excessive.
It has been stated that the factors to be taken into consideration in determining the amount of bail are:
(1) ability of the accused to give bail,
(2) nature of offense,
(3) penalty for the offense charged,
(4) character and reputation of the accused,
(5) health of the accused,
(6) character and strength of the evidence,
(7) probability of the accused appearing at trial,
(8) forfeiture of other bonds, and
(9) whether the accused was a fugitive from justice when arrested. 
That the accused is under bond for appearance at trial in other cases should also be considered.
A major factor in determining the amount of bail in a current matter is the character and former criminal record of the defendant. It has been held, however, that the criminal activities and tendencies of a person applying for bail on a charge of vagrancy do not justify the fixing of bail at an excessive amount for the purpose of keeping him in jail.
In determining the amount of bail, voluntary surrender may be considered as an indication that the defendant has no intention of absconding from justice. On the other hand, it is also proper, in setting a higher bail figure, to take into consideration the fact that at the time of arrest the accused was a fugitive from justice, or the fact that the defendant has previously absconded while under indictment.
Even where bail is a matter of right, the fact that a person has previously forfeited bail is a factor to be considered in determining the amount of bail; in such a case bail may be set in such amount as will reasonably assure the presence of the defendant at court, although bail may not be refused altogether. In setting the bail, the court may also consider the behavior or misbehavior of the defendant during parole from prison on a previous criminal conviction.
The probability of the establishment of guilt at the trial, or the existence of doubt as to the guilt of the accused, is a proper consideration in determining the amount of bail. Hence a court, in determining the amount of bail, may consider the character and strength of the evidence by which the crime charged is supported.
A court should give some regard to the prisoner's pecuniary circumstances, since what is reasonable bail to a man of wealth may be equivalent to a denial of the right to bail if exacted of a poor man charged with a like offense. An accused cannot be denied release from detention because of indigence, but is constitutionally entitled to be released on his personal recognizance where other relevant factors make it reasonable to believe that he will comply with the orders of the court.
However, bail is not rendered excessive by the mere inability of the accused to procure bail in the amount required. In other words, the extent of the pecuniary ability of the accused to furnish bail in not controlling, if it were, the fixing of any amount, no matter how small, where the accused had no means of his own and no friends who were able or willing to become sureties for him, would constitute a case of excessive bail, and would entitle him to got at large on his own recognizance. It is the incarceration of those individuals who cannot meet established money bail requirements, without meaningful consideration of other possible alternatives, which infringes on both due process and equal protection requirements.
The current American position is stated as follows in a standard treatise "There is power in the court to release the defendant without bail or on his own recognition."
The Legal Position in India
The Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: " Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence". Further, ss. 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C.. Thus, it is the discretion of the court to put a monetary cap on the bond. Unfortunately, it has been seen that courts have not been sensitive to the economic plight of the weaker sections of society. The unreasonable and exorbitant amounts demanded by the courts as bail bonds clearly show their callous attitude towards the poor.
According to the 78th report of the Law Commission as on April 1, 1977, of a total prison population of 1,84,169, as many as 1,01,083 (roughly 55%) were under-trials. For specific jails, some other reports show: Secunderabad Central Jail- 80 per cent under-trials; Surat-78 per cent under-trials; Assam, Tripura and Meghalaya-66 per cent under-trials.
One of the reasons for this is, as already mentioned above, is the large scale poverty amongst the majority of the population in our country. Fragmentation of land holdings is a common phenomenon in rural India. A family consisting of around 8 ? 10 members depends on a small piece of land for their subsistence, which also is a reason for disguised unemployment. When one of the members of such a family gets charged with an offence, the only way they can secure his release and paying the bail is by either selling off the land or giving it on mortgage. This would further push them more into the jaws of poverty. This is the precise reason why most of the under trials languish in jail instead of being out on bail.
An overview of the following cases highlight the adverse condition of the poor with regard to the unjust bail system in India. In State of Rajasthan v Balchand , the accused was convicted by the trial court. When he went on appeal the High Court, it acquitted him. The State went on appeal to the Hon'ble Supreme Court under Art. 136 of the Constitution through a special leave petition. The accused was directed to surrender by the court. He then filed for bail. It was then for the first time that Justice Krishna Iyer raised his voice against this unfair system of bail administration. He said that though while the system of pecuniary bail has a tradition behind it, a time for rethinking has come. It may well be that in most cases an undertaking would serve the purpose.
In Moti Ram and Ors. v State of M.P , the accused who was a poor mason was convicted. The apex court had passed a sketchy order, referring it to the Chief Judicial Magistrate to enlarge him on bail, without making any specifications as to sureties, bonds etc. The CJM assumed full authority on the matter and fixed Rs. 10,000 as surety and bond and further refused to allow his brother to become a surety as his property was in the adjoining village. MR went on appeal once more to the apex court and Justice Krishna Iyer condemned the act of the CJM, and said that the judges should be more inclined towards bail and not jail.
In Maneka Gandhi v Union of India , Justice Krishna Iyer once again spoke against the unfair system of bail that was prevailing in India. No definition of bail has been given in the code, although the offences are classified as bailable and non-bailable. Further Justice P.N.Bhagwati also spoke about how unfair and discriminatory the bail system is when looked at from the economic criteria of a person this discrimination arises even if the amount of bail fixed by the magistrates isn't high for some, but a large majority of those who are brought before the courts in criminal cases are so poor that they would
find it difficult to furnish bail even if it's a small amount.
Further in Hussainara Khatoon and others v. Home Sec,State of Bihar  , the Court laid down the ratio that when the man is in jail for a period longer than the sentence he is liable for then he should be released.
A perusal of the above cases highlights the strong anti-poor bias of the Indian criminal justice system. Even though the courts in some cases have tried to intervene and also have laid down certain guidelines to be followed but unfortunately nothing has been done about it. There is also a strong need felt for a complete review of the bail system keeping in mind the socio-economic condition of the majority of our population. While granting bail the court must also look at the socio-economic plight of the accused and must also have a compassionate attitude towards them. A proper scrutiny may be done to determine whether the accused has his roots in the community which would deter him from fleeing from the court. The court can take into account the following facts concerning the accused before granting him bail:
(1) The nature of the offence committed by the accused.
(2) The length of his residence in the community.
(3) His employment status history and his financial condition.
(4) His family ties and relationships.
(5) His reputation character and monetary conditions.
(6) His prior criminal records, including any record or prior release on recognizance or on bail.
(7) Identity of responsible members of the community who would vouch for his reliability.
(8) 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.
(9) Any other factors indicating the ties of the accused to the community or barring on the risk of willful failure to appear.
The Way Forward
It is thought that from the various schemes the government operates for rural employment, loans to farmers etc, a portion of the funds which it transfers to the panchayat for developmental work of the same should be set aside and kept to meet the bail amount for undertrials belonging to the particular panchayat / block. The utilization of this fund would be in the hands of the elected leaders of the society with the representative of district collector / district magistrate being a part of the system. This would, go a long way in securing freedom for scores of undertrials who would then be able to contribute to society thereby
playing an important role and forming part of the national mainstream. Such a scenario will have the effect of reducing the burden of over-crowding in jail.
The setting up of separate jails, or at any rate isolating undertrials from convicts, would prevent hardened criminals from exercising their deleterious influence over undertrials. Such segregation would also change the attitude of jail authorities and society at large towards under trials.
The under trials who have been charged with petty crimes can further be put in reformative homes instead and asked to do community service till the time they are released on bail. Elementary education facilities must be granted to those under trials who are uneducated and illiterate. Thus, I feel that the benefit of bail should not only be in the hands of a few, but, should be available to the masses including those who do not have the financial capacity to afford it.
1. Law lexicon by Ramanth Iyer, (3rd ed).
2. Black's Law Dictionary 177 (4th ed.)
3. Legislation has recently been enacted which, when brought into force, will require magistrates? courts and the Crown Court to give reasons for their decisions where they grant bail after hearing representations from the prosecutor in favour of withholding bail (Criminal Justice and Police Act 2001, s 129). Such a requirement has the potential to promote thoughtful decision-making and the proper consideration of the risks that a defendant might pose if granted bail.
4. Stone's Justices? Manual 2000, para 1-432.
5. H W R Wade and C F Forsyth, Administrative Law (8th ed 2000) pp 918?919.
6. State v Chivers, 198 La 1098, 5So 2d 363.
7. Braden v Lady (Ky) 276 SW2d 664.
8. Stack v Boyle, 342 US 1, 96 L Ed 3, 72 S Ct 1; Bennett v United States (CA5 Fla) 36 F2d 475.
9. Spector v United States (CA9 Cal) 193 F2d 1002; United States ex rel. Rubnistein v Mulcahy (CA2 NY) 155 F2d 1002.
10. Delaney v Shobe, 218 (inability to give bond in the amount set is not sufficient reason for holding the amount excessive).
11. In addition to a higher bail, the court may require additional sureties after a prior forfeiture of bail. Wallace v State, 193 Tenn 182, 245 SW2d 192, 29 ALR2d 941.
12. McCoy v United States, 123 App DC 81, 357 F2d 272; Beddow v State, 259 Ala 651, 68 So 2d 503; People ex rel. Sammons v Snow, 340 III 464, 173 NE 8, 72 ALR 798; Green v Peit, 222 Ind 467, 54 NE2d 281; State v Mastrial, 266 Minn 58, 122 NW2d 621, certden 375 US 942, 11 L Ed 2d 274, 84 S Ct 349; Royalty v State (Miss) 235 So 2d 718; Ex parte Royalty v State (Miss) 235 So 2d 718; Ex parte Malley, 50 Nev 248, 256 P 512, 53 ALR 395.
13. Bandy v United States (US) 7 L Ed 9, 82 S Ct 11 (per Douglas J., as individual justice).
14. AIR 1977 SC 2447
15. AIR 1978 SC 1594
16. AIR 1978 SC 571
17. AIR 1979 SC 1360