Over the past eight years, bail cases filed across high courts in India have increased by about 35 per cent. Amid innumerable Supreme Court declarations emphasising bail as a ‘default’ practice, district courts routinely deny it. The proportion of undertrial prisoners in Indian jails has increased from 68 per cent in 2019 to 77 per cent in 2021.
Bail is not merely a routine legal procedure; it extends a lifeline to undertrial prisoners by allowing them temporary release from incarceration. It also upholds the principle of ‘presumption of innocence’ and helps decongest the prisons. But delving into bail cases reveals systemic flaws in India’s criminal justice system, and sheds light on the country’s long-standing issue of excessive undertrial detention. The accumulation of bail cases in high courts and the Supreme Court—already overwhelmed by substantial case backlogs—exacerbates the strain on the judicial system.
India’s ‘bail burden’
We decided to look at the issue of bail across high courts to understand trends in the volume of cases and the time taken to dispose of them. Supreme Court Annual Reports data revealed a steady rise in the number of bail applications from 2015-16 to 2019-20. The largest increase, amounting to nearly 18 per cent, occurred between 2019-20 and 2020-21. According to the National Crime Records Bureau (NCRB)’s Prison Statistics of India , there was an analogous rise in the number of undertrial prisoners during this period. This jump coincided with the outbreak of the Covid-19 pandemic, during which prisons were decongested. On 16 March 2020, the Supreme Court ordered states to constitute high-powered committees that would make recommendations on interim bail, parole, or furlough.
Research by the Commonwealth Human Rights Initiative (CHRI) showed the short-term outcome of this effort. There was a 10.42 per cent decrease in prison population between 1 April 2020 and 30 June 2020, indicating some progress in managing overcrowding. However, states like Bihar, Jharkhand, and Uttar Pradesh transferred prisoners from one overflowing jail to another, distributing the burden rather than alleviating it. By December 2020, these gains had been reversed, and the number of undertrials was higher than a year ago. The number of prisoners given bail in 2020 decreased by nearly 18 per cent from the previous year according to NCRB’s Prison Statistics of India.
Not only are bail cases on the rise in high courts, but their share relative to the total number of cases is also increasing. This poses a significant concern as it diverts substantial judicial time of constitutional courts, which ideally should be focused on matters of legal interpretation. In 2021-22, several high courts experienced a notable upsurge in the proportion of bail cases in their caseloads. Particularly striking are the high courts of Patna and Jharkhand, where more than 50 and 60 per cent of the total cases comprised bail matters. This has significant repercussions not only on the pendency of cases but also on the overall functioning of the judicial system, as it leads to delays in handling other matters.
Bail burden is visible in the Patna High Court, where five out of 8 criminal benches hear bail cases. This situation can be partly attributed to Bihar’s stringent prohibition law. On 31 December 2021, Bihar prisons housed 17,642 undertrials detained under excise and prohibition laws. The High Court of Jharkhand evolved a band-aid measure to deal with this caseload, colloquially termed ‘bail mela’ by lawyers. In this mela, the court disposes of a large volume of bail cases before the Holi or Durga Puja vacations. Between 2017-19, we were able to identify at least 50 days on which 200 or more bail cases were decided.
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Analysing resolution duration
The next aspect we looked at was the time taken to dispose of bail cases. We did this by examining high court bail data from 2010 to 2021, scraped from the eCourts portal wherever specific case types for bail were identifiable. We identified 9,27,896 bail cases across 15 high courts. In an ideal world, it wouldn’t take long to resolve these cases since a decision on bail does not involve complex questions of law or fact. The judge does not need to decide on the guilt or innocence of the undertrial prisoner. And yet, on average, it takes 23 days for these high courts to pass an order on bail applications.
However, there are notable outliers. The High Court of Jammu and Kashmir took a median time of 156 days, while the High Courts of Orissa and Bombay 61 days and 56 days, respectively to dispose bail cases. Nearly 40 per cent of the now-disposed regular bail applications were pending for over a month. A one-month wait for a decision is not egregious when viewed against the backdrop of the long disposal times typical in Indian courts. But we cannot underestimate the impact of these deceptively inconspicuous delays on individual liberty. Throughout the time that a case is being adjudicated, the undertrial prisoner remains incarcerated. Often these cases reach high courts because district courts have denied bail, and hence, the period of incarceration far exceeds the high court disposal time frame. Such imprisonment is a departure from the presumption of innocence and can have devastating effects on the lives and relationships of the accused person.
Although we were very interested in understanding which legal provisions were involved in these cases, the quality of data on the eCourts portal made this analysis impossible. A staggering 77 per cent of cases did not specify the relevant legal provisions, and in 80 per cent of cases, it was unclear whether bail was granted or rejected.
The data we have collated and analysed indicates that there is a serious need to create guidelines for deciding bail cases to reduce district court’s discretion. This codification could have been part of the Bharatiya Nagarik Suraksha Sanhita 2023 (proposed to replace the current Code of Criminal Procedure 1973), but the bill does little to reduce judicial discretion in bail cases. A system that detains individuals awaiting bail decisions for prolonged periods undermines principles of justice and fairness. The plight of undertrial prisoners serves as a stark reminder that even seemingly minor delays in the judicial process can have significant consequences for the lives of those entangled within it.
The authors work at DAKSH, Bengaluru, a leading think tank and research institution focused on law and justice system reforms. Views are personal.
(Edited by Zoya Bhatti)