Bail should be norm, jail exception

The principle that bail is the norm and jail is the exception is an important element of jurisprudence. It is derived from the idea that everybody is innocent until proved guilty. But the bail norm is often violated blatantly in the country as there is no uniform, objective and clear set of rules to guide judges in taking their decisions. Therefore, the Central government’s move to formulate the necessary rules for this through the enactment of legislation, if necessary, is welcome. The government has approached the Law Commission to make suggestions for this. It has been observed that the granting of bail is often based on the discretion of judges. This is not desirable because discretion is not always exercised rightly and properly. There are charges that rich and influential persons benefit from such discretion while poor people are denied bail and have to spend time in jail, sometimes for years. The cases of Bollywood actor Salman Khan and Tamil Nadu Chief Minister Jayalalithaa securing easy bail are cited in this context.

The right to bail should be treated as basic and all people – rich, poor or belonging to any group or category – should have equal access to it. This does not often happen in practice in India. In the UK, the courts have to explain why bail is denied, if they do so. The right to bail is a given right in the US. In India, denial of bail is sometimes considered as rightful punishment. Also, evidence against an accused is taken into consideration when a bail request is heard. This is unnecessary and unwarranted, as evaluation of evidence is to be done only at the trial stage. No prejudices or impressions got from media coverage of cases should influence the decisions on bail. A bail hearing is not the time for a detailed view or assessment of the case.  Justice Krishna Iyer’s famous statement that no bail order should exceed more than one page sums up these ideas very well.

If there is a common and uniform set of guidelines or rules to govern the bail process, it will help elimi-nate any arbitrariness from it. Common people have to spend a lot of money, time and effort now if they want to secure bail. In many cases, they do not get it, and going to higher courts means spending more time, money and effort. Hopefully, the new standards will be formulated soon and they will make the system of justice more meaningful to all citizens.