That there is a crisis of undertrial incarceration in India is something most people agree upon. That the current state of bail law and practice contributes to this crisis is, again, a position that few argue against. Take the conversation a notch further and try and engage persons with specifics within the bail regime, and that is where the consensus begins to unravel.
Mainstream media—newspapers and other opinion pieces—tends to focus on repressive bail regimes of laws dealing with anti-terror or money-laundering crime, where extremely onerous thresholds for granting bail result in lengthy undertrial incarceration. The popularity of this area means it also dominates scholarship.
The regressive twin-conditions for bail are obviously a big problem but equally obviously they are not the reason for high undertrial incarceration. Poor structural guardrails on bail decision-making by courts is a more proximate cause for why 75% of the prison population consists of undertrials. This is an issue which scholarship (not opinion pieces) focuses upon, albeit not as prominently as it should.
Another issue is the monetary foundations of the bail regime. By this I mean the set of legal rules which declare that to be released from custody on bail a person must execute a bond promising to forfeit to the government a sum of money in the event that person fails to adhere to the terms of his release from custody. And, quite often, the requirement that in addition to this bond, one must also find suitable sureties who will also agree to be bound by a similar monetary promise. Considering that the vast majority of people ensnared by the criminal law are both economically and socially vulnerable, it is not rocket-science to think of just how problematic a bail law that is built upon monetary foundations can be.
This is only one example of a deeply problematic issue that does not make it to the paper, and depending on which part of the country you look at, other problems embedded in local court practices can be found. It was impossible and also undesirable to deal with all of them in a paper that has a very modest aim of simply trying to bring this issue back to the table in a critical manner. By ‘critical manner’ I mean arguing that the monetary bail regime is a bad thing which deserves to go, not that we can try and make it better or more palatable. This was the tenor of critique that was prominent in the 1970s through Justice Krishna Iyer and Justice Bhagwati, but has since died out. Such a critique needs to be urgently revisited at a time when both economic conditions and judicial delays are worsening, increasing the proportion of defendants who are imprisoned for no reason other than their poverty.
As always, comments are welcome and most appreciated!