Once bail is granted, the subsequent processes related to verification of sureties and execution of bonds should be set into motion immediately. However, these procedures are often neglected or left unprocessed resulting in unjust, extended periods of incarceration.

Bail entails conditional release, with or without sureties. Upon a bail order, the release occurs when present and future conditions, both monetary and non-monetary, are fulfilled. The Supreme Court has repeatedly cautioned against imposition of onerous bail conditions ordinarily, as they often are far from the socio-cultural realities of the majority of inmates seeking release. The law prescribes that such conditions on sureties, and bond amounts are to be ascertained based on the individual’s circumstance. To order the release of a person on conditions, they possibly cannot meet, is to strip them of their liberty. In January 2023, 5,000 such individuals remained in jail despite being on bail, demonstrating the failure of existing safeguards to ensure liberty.

A step towards bail reforms

Bail can be granted either on a personal or surety bond — it is essentially a guarantee. While release on a personal bond requires only the individual’s guarantee to appear at future court proceedings, bail on surety bonds requires a third party to stand as a guarantee. So surety bonds can involve property papers, vehicle registrations, cash, promissory notes, etc, which will be forfeited if the person flees on bail. During the bail grant, courts have the discretion to decide on bond amounts and surety conditions or simply rely on a personal bond.

Anecdotal evidence indicates that individuals frequently do not have persons to stand as sureties for their release. Despite this, the courts attach burdensome monetary and surety conditions, making it bound to fail.

As early as the 1980s, the apex court stressed the importance of bail on personal bond, especially when the individual has strong community ties and poses no significant risk of non-appearance. In the spirit of liberty, the default approach of courts should therefore be to resort to personal bonds, unless surety bonds are necessary, and conditions that unequivocally warrant a monetary bail bond or surety can be demonstrated.

Such a deliberate shift in judicial decision-making will alleviate the need for many individuals to undergo additional procedures, and also relieve the burden on the understaffed police force.

When bail is made conditional on surety requirements, it must go through verification and execution procedures, involving the police. This could mean scrutinising documents, validating surety address proofs, and any other information necessary to satisfy the court or the jail superintendent. This process can be notably time-consuming and is additionally based on the subjective satisfaction of the authority verifying and executing the bond, resulting in a delayed release. The recent ruling by the Delhi High Court offers an opportunity to address this by adopting a standardised practice to ensure immediate release.

Streamlining processes

An efficient standard procedure hinges on two pillars: stringent timelines and simplified processes.

The process must ensure that once bail is granted, the journey to release is set in motion. Verification conducted by the police must be within a reasonable yet strict time frame. If the incarcerated individual is unable to meet bail conditions within seven days, it must be the responsibility of the courts, or jail superintendents to ensure that bail conditions are modified to secure immediate relief.

The Bharatiya Nagarik Suraksha Sanhita, 2023 envisages the jail superintendent as a bail guardian, wherein they are tasked with applying for bail. A natural corollary, suggests they also ensure that bail orders reach their logical conclusion and that persons incarcerated are released immediately.

The highest court places power and duty on the trial court to suo moto take up cases for relaxing or modifying conditions, when bail conditions remain unmet for a month. Therefore, when dealing with such a case, it becomes the responsibility of the court to re-evaluate the bail terms and reconsider release on a personal bond. Any procedure developed should focus on incorporating and indeed strengthening existing court directives, focus on strict timelines, and lay down a simple process for all persons to access and avail justice.

Such a procedure will also protect individuals against undue harassment from law enforcement.

Despite clear laws and straightforward procedures for granting bail, the actual implementation remains inconsistent. Post-bail processes are convoluted, relying on subjective criteria and necessitating the involvement of numerous stakeholders. This complexity disproportionately affects individuals from marginalised backgrounds. Our approach to bail decision-making must evolve to align with the ground realities.

The quality of a nation’s civilization is often gauged by the efficacy of its criminal justice system. In India, the principle of justice demands that deprivation of liberty occurs only through a procedure that is just, fair, and reasonable. Therefore, the criminal justice system must operate with the utmost diligence to serve and safeguard its most vulnerable members.

Shrutika Pandey is a lawyer and researcher specialising in access to justice. She engages in developing strategies to advance the rights of undertrial prisoners through legal representation, research, and advocacy.

Ragini Nagpal is a lawyer practising in New Delhi. She actively works on child protection issues, including providing legal representation to children in conflict with law, and victims of child sexual abuse.

The views expressed are personal