The Guidelines Surrounding the Bail are Crystal Clear! Not Being Followed Though!

  • The subject topic keeps hitting the headlines regularly simply because the sheer amount of importance that should be attached is usually missing. Every concerned stakeholder pursuing the judicial paraphernalia would be aware of the situation surrounding the issue as thousands of undertrial prisoners languishing in several jails across the country for want of necessary action.  This is despite the Supreme Court time and again upholding the virtues of extending bail at all levels of the judiciary as a norm rather than an exception. It’s another matter altogether that the guidelines and exhortations on the bail get ignored for various reasons. Indeed, the widespread belief that the courts are meant for only the high and mighty rings true for the majority.


  • Let’s understand what is the latest to emerge on the hot topic from no less than the office of the Chief Justice of India. Recently, CJI Chandrachud flagged a critical issue when he observed that the district judiciary is found hesitant about granting bail in heinous offences for fear of being targeted.  However, it’s amply clear that only constitutional court judges can resolve this matter as most district judges and magistrates, despite the power bestowed by the laws, are relatively powerless in the judicial hierarchy.  Further, CJI also spoke of the need for bringing to the district judiciary a sense of dignity, sense of self-worth, and sense of confidence.  Now, prima facie, if this is missing, some blame lies with the judiciary’s steeply hierarchical nature.
  • Of course, the hierarchical nature is in part a reflection of broader social reality. Actually, far from being considered equal stakeholders as CJI Chandrachud referred to them, district judges are treated as subordinates.  They function under great fear of high court judges who perform administrative superintendence.  The difference lies in how they are protected under the laws. While HC and Supreme Court judges are protected by the Constitution, district judges don’t have such protections. To make it worse for lower court judges, many laws discourage bail.  No wonder then that many judges prefer to play safe in bail pleas, custody remand, etc.  The downside is that undertrial prisoners, even when framed by police, languish in jail interminably without relief.

PC: Max Croson

  • Note that conviction rates are just 42% for murder, 28% for rape, and 29% for economic offences. Denying bail amid such dismal figures is rank injustice.  Worryingly, low conviction rates have spurred undertrial imprisonment reversing the innocent until proven guilty dictum on its head. A fit case for denying bail is when witnesses/citizens are in danger from the accused or the accused can abscond.  In reality, most undertrials are too poor to plead for bail in HCs or afford legal assistance. Despite that, 3,000 bail pleas are pending in SC and 1 lakh in HCs. Disturbingly, 75% of prison inmates are undertrials. We need more judges but if the current judges rightfully apply the bail rule properly, the criminal justice system will see a huge upgrade, especially in granting bail.