Bail’s in our courts: SC’s idea on new bail law must be taken up by GoI. But judicial officers need reforming too

Source: This post is based on the article “Bail’s in our courts: SC’s idea on new bail law must be taken up by GoI. But judicial officers need reforming too” published in The Times of India on 12th Jul 22.

Syllabus: GS2 – Judiciary

Relevance: Criminal justice system reform and related issues

Context: SC recently took note of CrPC’s colonial biases that continue till date and issued directions.

GoI must follow through on the Supreme Court’s suggestion that India needs a comprehensive bail legislation, on the lines of the UK Bail Act.

What is the inequity that SC mentioned?

Police is quick to arrest citizens, and this puts poor and/or poorly educated citizens at a huge disadvantage as they are unable to take advantage of the legal system, unlike those with education and affluence and/or influence.

Around 70% of the prison population are undertrials, most of them poor and therefore unable to secure monetary bail.

What are the issues pointed by the SC?

Currently, provisions related to arrest and interrogation, issue of warrants and summons, execution of bonds and sureties, powers of police and courts, are dispersed across CrPC and various binding SC guidelines.

A law collating these in one place can check arbitrariness. But a problem, which SC notes too, is the attitude of judicial officers.

SC wondered whether the low rate of conviction tends to make judges adopt a negative attitude towards bail.

Sometimes, bail applications are kept pending for months. Unnecessary arrest coupled with no bail is a twofold blow.

Inaction on bail happens in high courts too. Appeals by the convicted are pending for decades in some HCs.

What are the directions given by the SC?

Instead of a punitive approach to bail, SC has now directed that bail applications should be disposed of within two weeks in the normal course.

SC has reiterated that arrest is a draconian measure to be used sparingly, otherwise the “impression that it is a police state” will gain ground, which would be a disturbing description of a democracy.

Way forward

SC’s scepticism over the compliance with its 2014 Arnesh Kumar judgment reveals how well-intentioned verdicts are being subverted.

The judgment had directed cops to diligently record specific reasons necessitating arrest, and magistrates to grant bail if the reasons don’t make a persuasive case.

Disciplinary action against errant officers – in police, judiciary or executive – may produce beneficial changes. But quick bail is a good corrective against unnecessary arrests.

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