Millennium Post

Bail rules: Panel to recommend ways to ensure poor don’t suffer

With the government favouring uniform rules to grant bail, Law Commission chairman Justice BS Chauhan has said guidelines for judges on the issue are “not required”. However, he said that the panel would recommend ways to ensure that the poor did not suffer. 

At the same time, Justice Chauhan said he was not rejecting the idea of recommending guidelines for judges on grant of bail and the Commission will examine it.

“My experience as a lawyer and a judge had been that it is the discretion of the court depending upon the facts of a case... court makes up its mind in half-a-second on whether bail should be granted or not... whether it is a fit case for bail or not,” the newly appointed Chairman of the 21st Law Commission said.

He said the “only difficulty” is that poor people do not get bail for want of legal assistance or money. “Sometime they cannot even bring the surety. Even if the court grants the bail, they cannot go out. We can suggest something only on these lines, but there can’t be any guidelines for the judge,” he said, responding to a reference made by the Law Ministry to the panel to examine the possibility of coming up with a separate Bail Act.

However, he added, “Not refusing guidelines for judges. We will study, but I don’t think it is required.” 

He said some suggestions may be made on “how to reduce the surety amount, in what condition it can be reduced. There must be some guarantee of his presence in the court in future, otherwise people will get bail and disappear. That will also create a problem. So to make bail easy is not a solution to the problem”. 

He said while a poor man must get bail, there should be means to ensure that his presence in court on a future date is “secured”. 

The panel would study laws of other countries before coming up with recommendations.

“One type of guideline may be there that at the appellate stage or even at the trial stage if the person has served a part of sentence, which can be awarded on the conclusion of the trial, his bail application may be considered. That may be there,” he said.

In September last, the government had said that it was contemplating a comprehensive Bail Act clearly defining the conditions for grant of relief to the accused so as to no longer leave it to the discretion of courts.

In an internal note to the Law Secretary, suggesting statutory norms for the grant of bail, Law Minister DV Sadananda Gowda had said that “all is not well with the way cases relating to grant of bail are being handled” and while those with resources are able to secure relief, “the poorer lot languish in jails”.

He had suggested the need to examine the desirability of having a separate Bail Act under a “major revamp” of the bail system. 

Law Secretary PK Malhotra had referred the matter to the Law Commission, requesting it to submit a report within six months. But at that time, the panel was without a chairman or members. Justice Chauhan was appointed Chairman earlier this month.

Gowda said though the judiciary adopts an elaborate procedure to deal with matters related to grant of bail, “still the system has the general perception among people that grant or denial is highly unpredictable...the bail system is linked inextricably to property and financial well-being of the accused, meaning thereby that accused persons with means”. 

Noting that there is a “growing dissatisfaction among the public about the system of grant of bail”, he said though grant of bail is a uniform and reasonable provision in theory, “in practise it does not prove to be so”. 

Gowda had said bail should be granted as a matter of right and it should only be denied when there is a fear that the accused can tamper with the evidence, influence witnesses or commit more crimes while out of jail.

The occupancy in Indian prisons has been reported to be consisting of 1/3 of convicts and 2/3 of undertrials. The Supreme Court has observed that bail and not jail is the rule.
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