The right to bail is concommittant of the accusatorial system which favours a bail system that ordinarily enables a person to stay out of jail until a trial has found him/her guilty. In India, bail or release on personal recognizance is available as a right in bailable offences not punishable with death or life imprisonment and only to women and children in non-bailable offences punishable with death or life imprisonment. 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 fact that undertrials formed 80 percent of Bihar’s prison population, their period of imprisonment ranging from a dew months to ten years; some cases wherein the period of imprisonment of the undertrials exceeded the period of imprisonment prescribed for the offences they were charged with- these appalling outrages were brought before the Supreme Court in Hussainara Khatoon v. State of Bihar Justice Bhagwati found that these unfortunate undertrials languished in prisons not because they were guilty but because they were too poor to afford a bail. Following Maneka Gandhi v. Union of India, he read into fair procedure envisaged by Article 21 the right of speedy trial and sublimated the bail process to the problems of the destitute. He thus ordered the release of persons whose period of imprisonment had exceeded the period of imprisonment for their offences. He brought into focus the failure of the magistrates to respect section 167(2) of Cr.P.C. which entitles an undertrial to be released from prison on expiry of 60 days or 90 days as the case may be.   


In Mantoo Majumdar v. State of Bihar the Apex Court once again upheld the undertrials right to personal liberty and ordered the release of the petitioners on their own bond and without sureties as they had spent six years awaiting their trial, in prison. The court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of the undertrials, remanded by them to prison. The Court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of undertrials, and the magistrate failure to monitor the detention of the undertrials remanded by them to prison.


In Kadra Pahadiya the Supreme Court observed that the Hussainara judgment had not brought about any improvement and reiterated that-

…..in Hussainara Khatoon it was held that the right to speedy trial is implicit, in the rights enshrined in Article 21 and the Court, at the instance of an accused, who was denied this right, is empowered to give instructions to the State Governments and to other appropriate authorities to secure this right of the accused.


In order to make this right meaningful in Bihar, the Supreme Court proceeded to pass orders to ensure institutional improvement in order to make speedy trial a meaningful reality. The Court therefore indicated the remedy in the event of denial of the accuser’s right to personal liberty enshrined in Article 21 namely that the Supreme Court may be approached in order to enforce the right and the Supreme Court in pursuance of its constitutional power may direct the State Government and other appropriate authorities accordingly. Thus order requesting High Court to furnish the Supreme Court with the number of Sessions Courts in Bihar, the norms of disposals fixed by the High Court; the steps, if any, taken to ensure compliance with those norms and considering the number of pending sessions cases, the adequacy of number of session court in Bihar. In regard to prisoners awaiting commitment, Court might suo motu consider granting of bail in accordance with the above mentioned principle laid down in Hussainara.


The travails of illegal detainees languishing in prisons, who were uniformed, or too poor to avail of, their right bail under section 167 Cr.P.C. was further brought to light in letters written to justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v. State of Bihar and Sant Bir v. State of Bihar. The court recognized the inequitable operation of the law and condemned it- “The rule of law does not exist merely for those who have the means to fight for their rights and very often for perpetuation of status quo… but it exist also for the poor and the downtrodden… and it is solemn duty of the court to protect and uphold the basic human rights of the weaker section of the society. Thus having discussed various hardships of pre-trial detention caused, due to unaffordability of bail and unawareness of their right to bail, to undertrials and as such violation of their right to personal liberty and speedy trial under Article 21 as well as the obligation of the court to ensure such right. It becomes imperative to discuss the right to bail and its nexus to the right of free legal aid to ensure the former under the Constitution- in order to sensitize the rule of law of bail to the demands of the majority of poor and to make human rights of the weaker sections a reality.”


on 26 April 2010
Published in Constitutional Law
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