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How US & UK made bail the rule, jail the exception, and why SC wants specific law in India

Govt should consider enacting a bail Act, SC said Monday. Countries including US, UK, Australia & New Zealand have comprehensive laws that govern rules of granting and refusing bail.

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New Delhi: The Supreme Court Monday proposed the introduction of a comprehensive bail law in India to deal with the rising pendency of bail applications, and discussed how such laws are in force in other jurisdictions including the UK and the US.

A division bench of Justice Sanjay Kishan Kaul and Justice M.M. Sundresh said that the central government “may consider the introduction of a special enactment in nature of a bail Act”.

The court was considering petitions filed before it seeking clarification on an order passed in October 2021, which had categorised different types of bail. In India, the Code of Criminal Procedure (CrPC) is the primary legislation that deals with the law on bail.

The CrPC does not define bail, but the Indian Penal Code (IPC) categorises offences as ‘bailable’ and ‘non-bailable’. For the former, the CrPC empowers magistrates to grant bail to the accused as a matter of right, conditional on a bail bond, with or without security.

Non-bailable offences are cognisable offences, where the police may arrest without a warrant, and the magistrate determines whether the accused is fit to be released on bail.

Normally, bail is to be granted if the person is not a flight risk and is not in a position to influence witnesses.

India also has a provision of anticipatory bail, for those apprehending arrest. In such cases, the person has to move court to get an order of anticipatory bail.

When the Department of Legal Affairs asked the Law Commission about the need for a separate bail law in India in 2015, the commission concluded that it wasn’t required.

In a detailed order accessed by ThePrint, the Supreme Court Monday discussed the bail law across different countries, including the United Kingdom and the United States.

It further traced the evolution of bail law in India and earlier Supreme Court decisions to note that “bail is the rule, jail is the exception”.

Presumption of innocence

The apex court Monday took note of the low rate of conviction in criminal cases, and said that because the possibility of conviction is “near to rarity”, bail applications are often decided strictly, contrary to legal provisions. The slim chance of an ultimate conviction may then force a court to keep the individual in prolonged custody, denying bail.

Quoting from its 2020 SC judgment in journalist Arnab Goswami’s case, the Supreme Court emphasised the role of trial courts as “guardian angels of liberty” and said: “It is the pious duty of the criminal court to zealously guard and keep a consistent vision in safeguarding the constitutional values and ethos.”

Goswami had received protection from arrest after he moved SC to club multiple cases filed against him in connection with one of his TV shows.

In its Monday judgment, the bench discussed how foreign jurisdictions, unlike India, have codified bail laws. It referred to the bail Acts in the UK and the US, which, it said, contained adequate guidelines for both investigating agencies and courts.

It suggested that the Indian government frame a similar comprehensive bail law, after considering all aspects of a criminal trial, and “hoped” its propositions would be taken in the “right earnest”.

The law must consider the most fundamental principles, such as presumption of innocence, the bench recommended. This, it explained, was necessary because in various laws in India there is a “statutory bar” on bail. Some examples mentioned in the judgment are the stringent anti-drug law (the Narcotic Drugs and Psychotropic Substances Act, 1985) and the Bihar Prohibition and Excise Act, 2016.

The court also directed the subordinate judiciary across the country to dispose of bail applications in a time-bound manner — preferably between two and six weeks.

In its Monday judgment, the SC noted that bail has been recognised as a right across countries. After citing several judgments on bail petitions from across the world, it noted that despite special provisions in other countries, courts there accorded presumption of innocence and issued orders in favour of the accused.

“The position in India is no different,” the bench added.

Comparing disposal of bail applications in India to those in other countries, senior advocate Geeta Luthra told ThePrint that getting bail in the US and UK is easier compared to India.

“I believe it is much easier to get bail in foreign jurisdictions, especially the US and the UK, even for more heinous crimes. Delays in proceedings and the threat of an accused absconding may make it difficult for Indian courts to grant bail,” Luthra said.

She cautioned, however, that “the focus should be on ensuring the presence of the accused rather than denial of bail”.

Also read: What India—Hindus and Muslims—missed in Supreme Court’s ‘lecture’ on Nupur Sharma

Trend towards streamlined legislation — US and the UK

The United Kingdom enacted a special Bail Act in 1976, which the SC said follows a “simple procedure” and provides for bail to all those to whom it is applicable, except as provided in Schedule 1 of the Act.

Schedule 1 provides for different contingencies and factors, including the nature and continuity of the offence. In UK, bail is based on cash deposits and specified restrictions on individual liberty.

In the United States, the Constitution prohibits “excessive bail”.

The Eighth Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This amendment prohibits the federal government from imposing unduly harsh penalties on criminal defendants, either as the price for obtaining pretrial release or as punishment for crime after conviction.

Over 30 years ago, the US Supreme Court had signalled approval for the liberty of the accused. “In our society, liberty is the norm, and detention prior to or without trial is the carefully limited exception,” the court had said.

In all crimes against the United States, i.e., federal criminal proceedings, release and detention is governed by the Bail Reform Act of 1984, which contains guidelines that must be followed regarding detention and release.

In a 1987 case involving mafia member Anthony Salerno — where the Supreme Court held the 1984 Act to be constitutional — the bench recognised that while the Constitution doesn’t include a right to bail, it does prohibit the imposition of excessive bail amounts.

Countries in the Caribbean

In 2018, a report by IMPACT Justice — a reform project funded by the Government of Canada — had noted that in the Caribbean region, only four countries had laws for bail.

These were Trinidad and Tobago, Barbados, Jamaica, and Saint Kitts and Nevis. When the report was published, Dominica and Antigua and Barbuda had also tabled such legislation, and it was pending with their parliaments.

Antigua and Barbuda went on to enact its comprehensive Bail Act in 2019, while Dominica did so in 2020.

While other countries in the region, such as Saint Lucia, have equivalent provisions in their criminal legislation, they lack a streamlined ‘special’ law for bail.

All these Acts are largely modelled and based on the Bail Act of the United Kingdom.

New Zealand and Sri Lanka

Enacted more than two decades ago, New Zealand’s bail law lays down all the rules governing the grant or refusal of bail. Even though the Act recognises bail as a matter of right for most offences, it makes exceptions for particular offences such as domestic violence and assaults on children.

Closer to home, there’s Sri Lanka’s Bail Act, enacted in 1997, which provides for bail as the ‘rule’, with refusal to grant it being the ‘exception’. However, the provisions of this Act do not apply in cases where a person is accused orf an offence under the country’s anti-terror law.

New South Wales, Australia and others

The Australian state of New South Wales in 2013 enacted a comprehensive Bail Act to replace a 1978 law, which had been considered “ground-breaking” at the time. This new legislation added the concept of “unacceptable risk” in bail cases, referring to whether the accused would fail to appear in proceedings, commit a serious offence, or endanger and interfere with victims, society, or the evidence. This was in addition to existing provisions that restricted bail.

On the federal level, Australia has similar specific legislation, enacted almost three decades back, which provides for the grant of bail except in certain cases, such as specific offences or while serving a jail sentence. The law also lays down conditions and undertakings for the one who is given bail.

Other examples include Mauritius and Malawi, which have enacted such comprehensive bail Acts in 1999 and 2000, respectively.

Akshat Jain is a student of the National Law University, Delhi, and an intern with ThePrint

This story has been updated with fresh quotes.

(Edited by Poulomi Banerjee)

Also read: Out of jail in 2030 — how Abu Salem pushed India to honour its promise to Portugal


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