India’s judiciary wants a new bail law – but wouldn’t implementing existing rules do the job anyway?

“More than 2/3rd of the inmates of the prisons constitute undertrial prisoners. Of this category of prisoners, majority may not even be required to be arrested…,” the Supreme Court noted in a judgment on Monday, as it restated the law on bail and issued directions for states to ensure compliance with the legal procedure laid down for arrests. It also asked the Centre to consider passing a separate law on bail to ensure that an objective process is followed in the granting of bail by courts.

However, several legal experts believe that the problem with the current bail system is not the absence of adequate laws but the non-application of existing ones. Therefore, they suggest that instead of laying down directions and clarifications, it would be more effective if courts upheld existing laws on bail and penalised investigation agencies and lower courts for any breaches.

What did the court hold?

The court reiterated several previous judgments and guidelines regarding bail. Further, it noted that the numerous conditions that need to be complied with while arresting an accused are often not followed.

For instance, Section 41 of the Code of Criminal Procedure says that for offences carrying a punishment of less than seven years, the accused should not be arrested in ordinary circumstances. In certain instances, however, the investigating agency can arrest an accused for these crimes after recording reasons in writing. Further, Section 41A also says that where an arrest is not required, a notice can be issued to the accused asking them to appear before the police and if the person complies with this, they should not be arrested.

The Supreme Court in the 2014 Arnesh Kumar judgment held that if the police officers do not follow this law then they shall be held liable for contempt. Even magistrates, while authorising detention, must record their reasons. If they do not, then they can be liable for departmental action.

Since the procedure mentioned in the criminal procedure code is rarely followed, the Supreme Court on Monday directed that states must issue standing orders so that the law is followed and there are consequences for non-compliance.

The court also noted that in the United Kingdom and many states in the United States, there are specific laws that lay down guidelines for arrests and grant of bail. There is a “pressing need” for a similar law in India, it said, to bring “uniformity and certainty” in the decision-making process of the court. Thus, it asked the Central government to consider passing such a law in India as well.

In addition to laying down these guidelines, the court directed state governments and high courts to file a report in four months to show that they have complied with this judgment.

Breach of guidelines

Lawyers told Scroll.in that the judgment does not tackle the principal problem, which is not a lack of guidelines but the fact that there are no consequences for officials who violate them. “There is a belief that officers can get away with not following the law,” Delhi-based senior advocate Nitya Ramakrishnan said.

The authorities follow the procedure “as per their wish”, Delhi-based senior advocate Rebecca John told Scroll.in. “They can breach it with impunity.”

Worse, this lack of compliance with bail guidelines is not limited only to investigating agencies but also extends to judges. “Both the police as well as the judiciary do not follow the procedure while arresting and sending an accused to custody,” Ramakrishnan added. Even Chief Justice of India NV Ramana pointed out in April that courts often do not record specific reasons while refusing or granting bail.

Further, courts, especially at the lower levels, are very slow to grant bail. “This is where the problem begins,” advocate-on-record Talha Abdul Rahman said. “The problem is so widespread that lawyers have coined the term ‘khaarija’ – getting bail application dismissed by trial courts.”

He continued, “Often bail applications are filed in trial courts for ‘khaarija’ [dismissal] just so that they can approach higher courts.”

Judges themselves ignoring laws and guidelines on bail plays a major part in encouraging illegal arrests. “These [illegal] detentions happen as there is not a sharp enough response from the judiciary,” John pointed out.

Hold officials accountable

Thus, lawyers say that the real need is not for new guidelines but to fix accountability for officials. “The law that exists right now is sufficient if followed in letter and spirit,” John said. “The judiciary must come down heavily on the abuse of the law. Pull up the state and its officers. Show them that there are consequences for not following the law.”

In stray cases, officials have been held accountable. For example, in June the Telangana High Court imprisoned four police officers on charges of contempt for illegal arrest. The Kerala High Court in April sought an explanation from a magistrate for remanding an accused to custody without application of mind. On Wednesday, the Supreme Court ordered the Chattisgarh government to pay Rs 7.5 lakh to a person who was wrongly imprisoned for three years.

“However, these orders are extremely rare,” Delhi-based criminal lawyer Shreya Munoth pointed out. More such instances are needed, John added.

Therefore, to effectively make changes on the ground, the court should focus on penalties. “It would have been better if the court gave directions on who would be responsible and penalised for illegal arrests,” Delhi-based senior advocate Sanjay Hegde said.

New law?

Further, the judiciary is better placed to deal with issues of bail instead of the government. The law made by “the state may have the potential to introduce caveats on the law of bail,” John said.

Also, the court wants a new law to bring uniformity to the process of granting bail. This may also be achieved through a judgment laying down an objective criteria, Rahman said, as there are existing judgments that lay down grounds for determining bail: such as prior criminal record, roots in society, social connections and so on.

Reiterating the laws

Despite non-compliance, lawyers believe that there may still be some value in the court restating the principles of bail. “The more often these principles are reiterated the better it is,” Munoth said. It provides more grounds for lawyers to argue for bail, she added.

For instance, on Tuesday, while arguing for bail for journalist Mohammed Zubair, his advocate Vrinda Grover brought up these guidelines before a Delhi court.

“Arnesh Kumar [even though not followed] at least gives us something to argue,” Ramakrishnan added.