Justice on Trial

Context:  Existing bail regime is loaded against the poor and underprivileged.

Issues pertaining to the existing bail regime:

• Overcrowding in Prisons: 69% of inmates in prison are undertrials; people are being incarcerated unnecessarily.
  • Demand for excessive surety or local surety: A report on prisons in Delhi states that hundreds of prisoners are in jail as a result of not being able to meet their surety conditions.
    • In 1996, the Delhi HC appointed court commissioners to investigate the background of prisoners unable to afford surety;
  • Arbitrary arrests: Difficulty in registering a complaint against police officials and weak internal incentives to discipline officers means there is little accountability for arbitrary arrests.
• Deprivation of a person’s liberty: In decisions on the drug-related offences law in 1994 and anti-terror law in 1996, the Supreme Court recognized that bail restrictions infringe on Article 21 rights.
• Lack of access to legal aid: Access to legal aid and ability to appeal is determined entirely by privilege; Muslims, Dalits and Adivasis are incarcerated at rates disproportionate to their population
• Draconian legislations:
• Special restrictions on bail for drug and terror offences.
• Prisoners under special law would not get the benefit of release from custody if they spent half of the maximum possible sentence in custody.
• Remand in often extended mechanically since the magistrate merely accepts the say-so of police.

Conclusion: In the absence of large scale reforms, we will continue with a bail regime that in its daily reality, both horrifies and numbs.