Bail or Jail: Why should someone be forced to seek bail?

The criminal justice system is meant to uphold justice, protect society, and ensure fairness for all. However, systemic flaws in criminal law and procedural codes, both in India and globally, have increasingly eroded these principles. The requirement to seek bail, often in the face of unproven or frivolous allegations, places an undue burden on individuals, subjecting them to trauma, social stigma, and loss of liberty.

The problem: A flawed Criminal Justice System

At the heart of the issue lies a criminal justice system that often fails to protect the rights of the accused. In India, public servants involved in investigations, police officers, prosecutors, and others frequently operate with impunity, shielded from accountability for misconduct. False or exaggerated allegations, driven by personal vendettas, political influence, or institutional egos, lead to arbitrary arrests and prolonged detention. The lower judiciary, grappling with a shortage of judicial officers and a culture of complacency, often lacks the courage to grant timely relief or correct procedural abuses. The pervasive attitude of “yaha aise hi chalta hai” (this is how it works here) has become a chronic barrier to justice.

Globally, similar issues persist. Over-incarceration, procedural delays, and biases disproportionately affect marginalized communities, who lack the resources to navigate complex legal systems. In India, approximately 80% of the population, particularly the poor, uneducated, and socially disadvantaged remains vulnerable to these systemic shortcomings. The result is a justice system that often punishes the accused before guilt is proven, undermining the presumption of innocence and violating fundamental rights.

The requirement to seek bail exemplifies this systemic failure. Bail is not a privilege but a safeguard to ensure that individuals are not deprived of liberty without due process. Yet, in practice, securing bail is often a gruelling process, marked by delays, onerous conditions, and judicial reluctance. This compels individuals to endure mental, social, and financial hardship, even when allegations against them are baseless. The following landmark judgments—national and international—underscore the need for urgent reform.

The need for reform:

National Judgments (India)

Arnesh Kumar v. State of Bihar (2014)

This landmark Supreme Court judgment addressed the rampant misuse of arrest powers, particularly in cases involving offenses punishable with less than seven years of imprisonment. The Court ruled that arrests should not be routine and must be justified with written reasons. Magistrates were directed to scrutinize these reasons before authorizing detention. The Court observed:

“Arrest brings humiliation, curtails freedom, and casts scars forever… Power of arrest must be used with restraint and not as a tool of oppression.”

This ruling exposed the casual approach to arrests in India, where individuals are often detained on flimsy grounds, forcing them to seek bail to reclaim their liberty. It also called for reforms to curb arbitrary arrests and ensure accountability.

Satender Kumar Antil v. CBI (2022)

In this case, the Supreme Court issued comprehensive guidelines to streamline bail processes and reduce unnecessary detention. The Court emphasized that bail should be the norm and jail the exception, particularly for non-heinous offenses. It directed courts to decide bail applications expeditiously and avoid imposing burdensome conditions. The judgment also categorized offenses to ensure that bail decisions are proportionate to the severity of the alleged crime. This ruling highlights the need for a judicial mind-set shift to prioritize liberty and expedite bail hearings.

Maneka Gandhi v. Union of India (1978)

While primarily a case on personal liberty under Article 21 of the Indian Constitution, this judgment expanded the scope of due process. The Supreme Court held that any procedure depriving a person of their liberty must be fair, just, and reasonable. This principle directly applies to the bail system, where prolonged detention without access to evidence or timely hearings violates constitutional guarantees. The ruling underscores the need for procedural reforms to protect the accused’s rights.

Hussainara Khatoon v. Home Secretary, State of Bihar (1979)

This case exposed the plight of under trial prisoners languishing in jails due to delays in trials and bail processes. The Supreme Court held that prolonged detention without trial violates the right to a speedy trial under Article 21. The judgment led to the release of thousands of under trials and emphasized the need for fast-tracking bail and trial processes to prevent unjust incarceration.

International judgments

A v. United Kingdom (2009) – European Court of Human Rights (ECHR)

The ECHR ruled that prolonged pre-trial detention without sufficient justification violates Article 5 of the European Convention on Human Rights (right to liberty and security). The Court stressed that detention must be a measure of last resort, supported by clear, documented reasons. This judgment aligns with India’s need for transparent justification of arrests and detention, ensuring that bail is not denied arbitrarily.

Prosecutor v. Jean-Pierre Bemba Gombo (2009) – International Criminal Court (ICC)

The ICC emphasized that pre-trial detention must be supported by concrete evidence of risks, such as flight risk or tampering with evidence. The Court granted conditional release to the accused, highlighting the importance of proportionality in detention decisions. This principle is critical for reforming India’s bail system, where vague allegations often lead to prolonged custody without justification.

Salduz v. Turkey (2008) – ECHR

This case established the right to legal assistance from the earliest stages of detention, including during police questioning. The ECHR held that denying access to legal representation undermines the right to a fair trial. In the context of bail, this ruling underscores the need for accused individuals to have immediate access to legal aid and case documents to effectively challenge detention.

Possible solutions  

To address the systemic issues highlighted by these judgments, the following reforms are proposed to create a fair, transparent, and accountable criminal justice system:

Transparency and Accountability

A robust oversight mechanism must be established to hold investigating officers accountable. Every decision, from arrest to charge-sheeting, should be documented and subject to judicial review. Independent bodies, such as ombudsmen or anti-corruption commissions, can investigate complaints of misconduct, ensuring transparency at every stage.

Priority to the Rights of the Accused

The presumption of innocence must be the cornerstone of the justice system. Arrests and detention cause immense trauma, character assassination, and reputational damage, even before guilt is proven. Courts must adopt a proactive approach to granting bail, particularly in cases involving non-heinous offenses, to protect the accused’s fundamental rights.

Expedited Hearings for Bail Cases

Bail applications should be treated as urgent, with strict timelines for hearings and decisions. Dedicated fast-track courts or specialized benches can address bail matters to prevent prolonged detention, which often results in irreparable harm. The judiciary must prioritize liberty over bureaucratic delays.

Unconditional Access to Case Documents

The accused must have unfettered access to all case-related documents, including FIRs, charge sheets, and evidence. Delays or denials in providing these documents violate the right to a fair trial under Article 21 and international human rights standards. Digital platforms can streamline access to case records, ensuring transparency.

Mandatory Responses to Complaints of Violations

Complaints of procedural abuses—such as coerced confessions, fabricated evidence, or misconduct—must be promptly investigated, and findings recorded in case proceedings. Failure to address such complaints undermines the integrity of the justice system and erodes public trust.

Accountability for Time Spent in Custody

Every day an accused spends in custody must be justified. If detention is later found to be unlawful or excessive, responsible officers should face disciplinary action or criminal liability. Compensation for wrongful detention should be mandated to deter systemic abuses and provide redress to victims.

Reforming the Police-Investigation Structure

The investigation process must be professionalized by separating crime prevention from investigation. Specialized Investigation Officers (IOs), trained in legal and forensic sciences, should be appointed on a contractual basis through a transparent government scheme. Regular police forces should focus on maintaining law and order, while IOs handle investigations under judicial oversight. This separation will reduce bias and enhance the quality of investigations.

Conclusion

The law exists to protect the dignity, liberty, and rights of every individual, as enshrined in India’s Constitution and international human rights frameworks. However, when bail becomes a privilege rather than a right, and when legal systems are manipulated to serve vested interests, justice itself is under threat. Landmark judgments like Arnesh Kumar, Satender Kumar Antil, and Hussainara Khatoon in India, alongside international rulings from the ECHR and ICC, highlight the urgent need for reform. By implementing transparent, accountable, and accused-centric reforms, governments can restore public trust and ensure that the criminal justice system serves its true purpose: delivering justice for all. The time for bold, fearless reform is now.