Foreign Law: History and critique of the Indian law on Bail

Foreign Law: History and critique of the Indian law on Bail

The British with the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1898, enacted the criminal justice system in India. The criminal justice system today is based on the principles of equality, liberty or as Oliver Wendell Holmes, Jr. puts it, “Your right ends where my nose begins”[1]. The laws were built to assure that no one is deprived of his/her liberty for an offence he has not committed and the procedure of punishment is as fair as possible. These principles are somewhat in contradiction to each other when seen critically. When we say that we punish somebody for breaching someone else’s right, we are technically breaching the accused person’s right by denying him his liberty.[2] Therefore, there is a need to be sure of his guilt before we, the justice system, curb his or her liberty. Thus emerges the principle of proving his guilt beyond reasonable doubt. However, in the matter at hand, this principle gets a little more complicated.

At the pre-trial stage, there is no confirmation of the accused’s guilt or innocence; therefore to arrest him, would be to curb his fundamental right to liberty. However, to let him free without any restriction might cause him to flee which would nevertheless lead to not achieving justice.[3] Therefore there is a need to draw a middle ground between these two conflicting views. I seek to find this middle ground with the help of the case of Gurbaksh Singh Sibbia v. State Of Punjab [(1980) 2 SCC 565]. This brings me to the topic of Bail. According to Black’s Law Dictionary, it is a, ‘security for the appearance of the accused person, on giving, he is released pending trial or investigation’.[4] Today, the accused after arrest, can ask for bail and that he or she be released on the surety that he or she will duly attend the trial proceedings and not try and flee.[5] This is a right for bailable offences and for non-bailable offences; rejection of bail is an exception.[6]

I will first be addressing the history behind bail and what was the reason for its origin, followed by a critique of the flaws in the practical process issuing bail. I will analyze the view of the Law Commission and of the Supreme Court via the case of Gurbaksh Singh Sibbia. Before concluding, I will provide a personal view of what I think is right and whether the Supreme Court and the Law Commission agree with my view.

In the words of one of the most prominent jurists, Krishna Iyer, J. –

“… Belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.[7]”

The subject of bail is very nuanced and has more implications that what seems at first instance. The concept behind criminal procedure is to obtain justice and punish the guilty. As stated above, at pre-trial stage the accused is innocent until proven guilty, therefore to restrain his freedom would be violating his fundamental right. Therefore there needs to be a fathomable justification to put him in jail. There is a risk that the accused may abscond and not attend the trial proceedings, agreed, however, this justification is not enough to infringe upon a person’s fundamental right.

To ensure his attendance to the proceeding, the founders of criminal procedure way back in 1275 enacted a legislation called the Statute of Westminster I. Chapter 15 of the statute dealt with bail, which is also called the Prisoners and Bail Act, 1275.[8] This curbed on powers of the sheriffs to grant bail in a discriminately fashion. It laid down guidelines where an accused can or cannot be granted bail.[9] Although sheriffs still had the authority to fix the amount of bail required, the statute laid down crimes which were bailable and which are not – as what today the Schedule 1 of the Code of Criminal Procedure, 1973 does. The Statute of Westminster I is also one of the foremost laws enacted to punish those who would commit a wrong and were sentenced, based on the French principle of peine forte et dure.[10] The Statute, still in force today in the United Kingdom[11] was used in the 17th Century to release noblemen who were wrongly put in jail by King Charles I. The noblemen filed Habeas Corpus petition under the Habeas Corpus Act 1679, and argued that the King violated the Magna Carta and the imprisonment without the right to bail was against the Statute of Westminster I.

As we can see, the history of Bail is a long one. In India, there are two types of bail, one being the normal