COVID-19 – VI: India’s Decaying Bail System: A Virus Exposes the Truth

By Tanay Singh and Tanya Rathod



The term bail essentially means the interim release of an accused from the judicial custody and to place him/her under the custody of some monetary assurance to serve the accused person his right to enjoy the personal freedom. Granting of bail in the Indian criminal justice system has always been an issue of major contention, with many critics arguing that the Indian bail jurisprudence is severely outdated and does not align with the modern needs of the system. The current procedure of granting bail is severely inefficient and glaringly discriminatory which is accompanied by the massively overburdened prisons. To alleviate some of the distress in the country already burdened with infrastructural lacking, the judiciary is looked up to for granting justice. However, granting of bail to an accused must not be based on the ability of the prison complexes to hold convicts, but must hold its grounds on the just and reasonable interpretation of the principles enshrined in the Criminal Procedure Code and the Constitution of India, yet the plethora of backlog cases and an ever-growing number of undertrials resonates a different story.



The Judicial discretion which grants freedom to the courts for a free and fair risk assessment in granting bail has been abused heavily. Several studies have shown that a judge in the lower courts is more likely to err in his decision of granting bail, firstly on the side of detention because of a critically overburdened system; and secondly, because larger public safety seems a safer choice to him. This is only concerning the complete denial of bail but what happens when the accused is well within his right to acquire bail but is simply not able to because the bail amount is too high to pay? The accused languishes in jail as an undertrial for several years, sometimes more than the maximum time-period that he would have been imprisoned for if he was convicted for the crime he was booked under. This flawed system of punishment before conviction not just affects the poor and downtrodden but also the higher-ups; which became evident when the former Union minister Mr. P Chidambaram had to bear the brunt of ailing bail laws bred by the error in the judicial discretion applied by the judges in the INX Media case. The Delhi High Court in the said case denied the plea of bail stating that the present case falls under the exception and Chidambaram’s political affiliation gives rise to the likeliness of tampering with the evidence. The court iterated the conventional triple test to emphasize the fact that the allegations were that of grave economic offense and thus, the denial of bail is justified keeping in mind the facts and circumstances of the case. Chidambaram was once again arrested by the Enforcement Directorate on the 17th of October after he had already spent over 100 days in Judicial custody of the CBI. Here, different prosecuting agencies were acting in tandem to further add to the misery of the accused, this discriminatory phenomenon is referred to as the relay jurisprudence. In the instant case, as soon as the CBI and ED felt that the undertrial prisoner was likely to be released after 75 days, another warrant was produced against him and the prisoner who was under the presumption that he might be released after completing the required time yet again ended up in the Judicial custody of a separate investigating authority. The precedents like these where the undertrial prisoner underwent four different sets of judicial custody make us wonder where does the prosecutorial fairness and objectivity find its place in the dispensation of justice towards the accused and undertrial prisoners. In recent times, we are witnessing a rise in cases where investigative agencies have been turned into mere political pawns to harass individuals and the impaired bail system has only proved to be a very convenient facilitator. To get to a solution, it is imperative to analyze how this flawed bail system further complicates the procedures keeping in mind the emerging issues of the country.



It is usually said that the darker times reveal the harsher realities; the same is highly evident today when India is grappling with the COVID-19 pandemic. In times like these, judicial intervention is highly crucial, yet in a recent judgment by the High Court of Bombay, a single-judge bench refused to hear the bail application of the petitioner who had listed the item on an urgent basis and cited reasons for how a bail plea during a national lockdown cannot be considered as urgent. In another reckless judgment, the Rajasthan High Court passed an order directing not listing bail pleas during the lockdown as those matters could not be considered urgent and would risk many lives and breach the order of lockdown. Both the High Court orders were founded upon the basis that allowing such bail applications shall lead to overcrowding of the courts and in the meantime blinding themselves towards the misery of prisoners already persisting in the overcrowded jails. However, the bail applicants were given some breather when the Supreme Court imposed an interim stay on the Rajasthan High Court’s direction.

Finally, the Supreme Court of India took suo-moto cognizance of the issue of overcrowding in prisons during the COVID-19 pandemic and directed the States/Union Territories to form a high powered committee to determine which class of prisoners could be released on bail, parole or furlough and temporarily release the prisoners after determining their release on the nature and severity of the offences.

The step by Supreme Court was taken to curb the menace of overcrowding of prisons; however, the more relevant aspect of this directive is to analyze the data which reaffirms the lamentable condition of Indian bail jurisprudence at the bleakest form. In a recent report submitted by Director-General of Prisons stating that almost 16 prisons in Delhi with a total capacity for 10,026 prisoners have 17,440 inmates out of whom 14,355 are undertrial prisoners. Furthermore, the data reveals that most of the States and Union territories were housing more inmates than the actual capacity of the prison. The most alarming fact that resurfaced was that the population of undertrial prisoners was more than the actual convicts. Another problem faced by those who were released was that there were no means of transportations available for them to reach their homes since the whole country was under the lockdown which left them destitute and homeless at the gates of the jail. This hasty and unprepared decision of the courts further raises questions about why the authorities failed to intervene at an earlier stage if they were aware that the rights of these undertrials were being blatantly denied.



In 2005, section 436A was brought in to the Code of Criminal Procedure to address the problem of a growing number of undertrial prisoners in the country but it has largely been left unused. Even after an order was passed by the Supreme Court in Bhim Singh v. Union of India, which called upon the states for effective implementation of section 436A across prisons in the country, it’s purpose was not fully delivered. It is no doubt that India’s old and decaying bail jurisprudence needs urgent and comprehensive reform to respond to the new challenges of the changing times, while there have been calls for a separate bail act to effectively deal with the shortcomings of the current system, the Advisory Council for Justice Delivery and Law Reforms held in 2016 decided against it and rather suggested for amendments in the Code of Criminal Procedure. The 268th Law Commission of India Report suggested certain reforms, its implementation and more so it’s calling for a change have fallen on deaf ears of the Ministry of Law and Justice. To desecrate one of the cardinal principles enshrined in Article 20 and 21 of the Indian constitution is to commit a ghastly sin because it not only violates our domestic law but also Article 11 of the Universal Declaration of Human rights. In this time of the pandemic, more cracks are starting to appear on the structurally flawed bail system in India. From the recent orders of Bombay High court and Rajasthan High Court, it appears that that the rights of the accused have unfortunately taken a back seat. It has become the need of the hour to track the flaws in the Indian laws regarding bail – ranging from overcrowded prisons to delayed judicial intervention – and make the necessary amendments because alike any other pandemic, decaying bail system in India is spreading its roots rapidly.

[The co-authors are law students at National Law University, Odisha.]


One thought on “COVID-19 – VI: India’s Decaying Bail System: A Virus Exposes the Truth

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s