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Bail Reforms: Curbing Judicial Discretion

By: Bhavnish Kaur* |

India’s criminal justice system has been plagued with delays, complex technicalities, procedural lapses, unreasonable exercise of discretion and inconsistent application of the law.[i] These features of the criminal justice system make justice inaccessible especially for those who are already within the vulnerable sections of the society. The practical challenges also lead to a poor perception of courts in the minds of the people. It can act as a deterrent for victims to raise their voice because of the perceived tediousness and injustice of the system.

In a situation where the accused has been prejudiced by the technicalities of complex laws, bail is the means to provide a temporary relief and safeguard the liberty of individuals. Detention of a person infringes upon his personal liberty safeguarded under Article 21 of the Constitution. Bail is a security that is taken for setting a person at liberty. The Supreme Court has time and again reiterated the principle that ‘bail is the rule and jail, the exception’. Section 437 and Section 439 of the Criminal Procedure Code, 1983, (“CrPC”) give the Court of the Magistrate, Sessions Court and High Court the discretion to grant or deny a bail application. However, this discretion, which requires the court to conduct a free and fair risk assessment, has been abused heavily. This article explores the inconsistency and arbitrariness in the granting of bail and addresses the need for legal reforms.

Arbitrary bail orders

In a recent order, the Patiala House court rejected the bail application of Safoora Zargar, a 21-week pregnant woman. Safoora was charged with sections 16, 17 and 18 under Part IV of the Unlawful Activities Prevention Act, 1967 (“UAPA”), which provides for punishment for terrorist activities. She was accused of delivering inflammatory speeches and for being involved in a conspiracy to block roads. The bail provision applicable to Part IV of the UAPA is S. 43D(5). It allows the courts to deny bail if there are reasonable grounds to believe that the accusation is prima facie true in cases of an offence committed under Part IV or Part VI. The court, in the present case, denied bail and analysed Safoora’s actions under “unlawful activities” and “disaffection against India”. These observations are irrelevant to the sections which Safoora has been charged under. The court did not even go into the classification of the actions as “terrorist act” which was important to prove that a prima facie case has been made out. The court, thus, gave a wider interpretation and further lowered the threshold for S. 43D(5). While judges are allowed discretion in granting bail, this should not be exercised by completely ignoring the provisions of law.

In the case of Dataram Singh v. State of Uttar Pradesh, it was held that even though the court has discretion in matters of bail, “it must be exercised judiciously and in a humane manner and compassionately.” The granting of bail is a judicial and not a ministerial act. The discretion cannot be arbitrarily exercised. The court in the case against Safoora, failed to follow the dictum laid down in its earlier judgments and delivered the order unreasonably, without ‘applying its mind’.

Section 437(3) of the CrPC lays down the conditions which the courts can impose while granting bail and it also gives discretion to the courts to impose any other condition that they consider necessary in the interest of justice. The condition should be reasonable and should have nexus with the object and purpose for which bail is granted. This has also been reiterated by the Jharkhand High Court. It is ironic then, that the same high court in another case, released the accused on bail and directed them to deposit Rs. 35,000 in the PM Cares Fund and download the Aarogya Setu App. The court did not mention the relevancy of these conditions in the matter at hand and failed to apply the discretion reasonably.

Such instances show that the courts often disregard the purpose for which bail is granted i.e. to secure the attendance of the accused at trial. Despite the fact that the Apex court has made observations on how the discretionary power in bail is to be exercised reasonably, we see many courts using the power arbitrarily. In many cases, the judiciary has been using bail as a tool for retributive justice where the offence is grave in nature. This is especially apparent in cases involving sedition as can been seen from the case of Binayak Sen, who was denied bail for years. In March, this year, the Hubli court in Karnataka dismissed the bail application in the KLE students sedition case. Bail is available as a right for every citizen but such inconsistent exercise of discretion by the courts harm the vulnerable section disproportionately and gives scope for abuse.

Proposed legal reforms

The legislature has not been very proactive in taking up bail reforms. It was only in 2017, that the Law Commission of India released a report pressing for the need to improve the legal framework around bail. The commission observed that 67% of the current prison population consists of under-trial prisoners. In its report, it stated that a bail condition must not unreasonably violate the rights guaranteed by the Constitution. Further, it recommended that the undertrial prisoners who have been detained for an offence having up to seven years’ imprisonment be released on completing one-third of that period, and those charged with offences having a longer jail term, after they complete half of that period. While the report brought into light the need for bail reforms, it was criticised on many aspects. The report identified a myriad of problematic areas in the bail sector but ultimately has only recommended minor reforms. There was the discrepancy between the recommendations and the draft Bill. Further, the report simply seemed to touch upon issues without providing concrete steps for implementation. It also underscored the plight of undertrial prisoners through its analysis.

Bail is based upon the principle of ‘innocent until proven guilty’. While considering the legal reforms in bail laws, it should be kept in mind that the accused only has allegations against him/her and has not been convicted. The courts should not be swayed away by the gravity of the offence but should appreciate the evidence and apply its mind in a reasonable manner. There should be a uniform test to guide the judiciary in granting the bail. The test should require the courts to deny bail only in cases where when there is a flight risk, non-cooperation on part of the accused or possibility of tampering of evidence.

The Bail conditions must consider the socio-economic position of the person and must not be unduly onerous. ‘Surety’ in the form of monetary consideration has made bail for the poor inaccessible. Alternative forms of conditions should be imposed for securing the attendance of the accused at the trial. Conditions completely unrelated to the object of the bail or which impose the high amount of ‘surety’ inadvertently affect the economically weaker sections of the society. The current bail laws are entirely divorced from the social reality of the country. While bail is considered as a right and is a formally equal law, the availability of discretion leads to abuse of power and moves away from the principle of equity. A uniform test will allow the doctrine of ‘bail as a rule’ to become a reality.

The judicial discretion in all bail related matters should be guided by the rule of law and should be exercised through reasoned decisions. The nexus between the conditions and grant of bail should be clearly laid out in the order. The analysis of a bail application requires the court to balance the individual right to liberty with the societal/public interest at large.


The Supreme Court in its 2005 decision had held that while granting bail, factors such as ‘character, behaviour, means, position and standing of accused’ should be kept in mind. In another judgement, it held that the “probability or improbability of the prosecution terminating in conviction is not a conclusive consideration for the grant or refusal of bail”. The discretion must be judicially exercised subject to restrictions mentioned in Section 437(1) of CrPC and keeping in view enormity of charge, nature of the accusation, the severity of punishment on conviction, the possibility of accused absconding if released on bail, the danger of witnesses being tampered with, health, age and sex of accused etc.

Despite such guidelines, we see that the courts are abusing their power. The above-mentioned examples show that there is a lack of uniformity between the parameters that the judiciary looks at. Various problematic aspects of the recent orders of the courts have been in terms of the length, the reasons stated and the conditions imposed. In order to avoid the inconsistency in the application of the law, the court should go into the analysis of weighing the potential harm of bail with the individual right to liberty. It should also consider factors like the socio-economic standing of the victim and accused. Individual liberty should not be compromised because of judicial oversight.


* The author is a student at Gujarat National Law University, Gandhinagar.

[i] As of November 2019, there are around 3.4 crore cases pending before the district and subordinate court in India. Around 59,000 cases are pending before the Supreme Court. ‘Over 3.5 Crore Cases Pending Across Courts in India, Little Change in Numbers Since 2014’, The Wire, Nov. 27, 2019, <>.



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