The concept of bail is not unfair

The concept of bail is unfair as well as fair. In this article, I am discussing the concept of bail in context of Indian law. The granting of bail is usually considered to be an inherent right. However, there are certain circumstances where bail may be refused. In bailable offences, it is a right of the accused to be released on bail. But in non bailable offences, the accused can be refused bail by the competent authority if the authority deems it fit. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person.

A court is bound to presume a person innocent till the trial is complete. A bail hearing is not a hearing on the merits of the matter itself and does not go into the issue of guilt. Therefore granting of bail is the norm except in cases where specific grounds are made out based on which the bail can be refused. If there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life then the person shall not be granted bail. Moreover if the offence is a cognizable offence and the accused had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence then the person will not be realized on bail.

In non bailable offences, it is not the right but the discretion of the Court to grant or refuse the bail. The effect of the above provisions is that for minor offences the offender is given a right to bail. Whereas for serious and grave offences the offender is not given a right to bail. In such cases, it is the discretion of the court to grant the bail or not.

Our legal system is based on the maxim"It is better that ten guilty persons escape than that one innocent suffer". Hence till a accused is under trial, he/she may be innocent, thus right to bail protects their freedom. The object detention of an accused person is primarily to secure her/his appearance at the time of trial and is available to receive sentence, in case found guilty. If his/her presence at the trial could be reasonably ensured other than by his arrest or detention, it would be unjust and unfair to deprive the accused of his liberty during pendency of criminal proceedings.

It is important to note the relevant provisions enshrined in the Universal Declaration of Human Rights, Article 9 is that no one shall be subjected to arbitrary arrest, detention or exile. Article 10 states that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 11(1) states that everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. There are thus several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial detention. In such cases the concept of bail is fair.

The right of police to oppose bail, the absence of legal aid for the poor and the right to speedy reduce to vanishing point the classification of offences into bailable and non-bailable and make the prolonged incarceration of the poor inevitable during the pendency of investigation by the police and trial by a court. The Supreme Court in Hussainara Khatoon v. State of Bihar. Justice Bhagwati found that the unfortunate under trials languished in prisons not because they were guilty but because they were too poor to afford a bail.

But in many cases granting of the bail is taking the risk of allowing an individual who has been accused of a crime to return on the date provided by the judge. Many a times, the accused tamper the evidences, causes undue influence on witnesses. The accused flee from the country immediately after the bail hearing. In these cases, it is a waste of the government's resources and time to seek out these runaways and bring them back to the country. The cost of searching and the amount of effort to capture the accused is very high. In these cases the concept of bail seems unfair.

The real benefit of the right to bail is not reaching to the poor individuals but influential rich people, who can afford renowned lawyers, get bail easily in non bailable offences, by getting the exploiting the loopholes in the prevailing laws. Thus the conclusion is that bail is unfair if the criminal gets it and fair if an innocent person under trial gets it.