Why in News ?
President Donald Trump on Monday signed an executive order targeting cashless bail in the US. The order cuts federal funding for jurisdictions which allow the practice.
UPSC Relevance
Knowledge on Legal concepts and laws is often tested in Prelims
PYQ
2021
With reference to India, consider the following statements:
1. When a prisoner makes out a sufficient case, parole cannot be denied to such prisoner because it becomes a matter of his/her right.
2. State Governments have their own Prisoners Release on Parole Rules.
Which of the statements given above is/are correct?
a) 1 only
b) 2 only
c) Both 1 and 2
d) Neither 1 nor 2
Bail
- Bail is the conditional, temporary release of a person accused of a crime from custody while they await their trial or other legal proceedings.
- The primary purpose of bail is to ensure an accused person appears for their trial and doesn’t interfere with the investigation. One common method for this is requiring a cash deposit as a form of surety. If the accused fails to pay, they remain in jail until their trial.
Difference between a Bail and Parole
| Feature | Bail | Parole |
| Timing | Granted before a person has been convicted and sentenced. It is a pre-trial release. | Granted after a person has been convicted and has served a portion of their sentence. |
| Purpose | To ensure the accused person appears for their trial and doesn’t interfere with the legal proceedings (e.g., tampering with evidence or intimidating witnesses). It is based on the presumption of innocence. | To conditionally release a prisoner who has demonstrated good behavior and has a low risk of re-offending. Its purpose is to aid in rehabilitation and reintegration into society. |
| Legal Status | The person is an accused or a defendant, not a convicted criminal. | The person is a convict who is still serving their sentence, but outside of prison. |
| Decision-Maker | A judge or magistrate in a court of law. | A parole board or prison authorities, based on the prisoner’s conduct and eligibility. |
| Basis of Release | The release is a matter of legal right in bailable offenses, or a matter of judicial discretion in non-bailable offenses, often dependent on factors like the nature of the crime and the accused’s risk of flight. It often involves a monetary deposit or a surety. | The release is a privilege, not a right. It is a reward for good behavior in prison and is subject to the discretion of a parole board. |
Cashless Bail
- Cashless bail, as advocated in the US, aims to eliminate the requirement of a cash deposit for release.
- Proponents argue that the current system disproportionately affects the poor, who may be kept in jail for minor offenses simply because they can’t afford bail.
- A notable case is that of Kalief Browder, who spent three years in jail on a minor charge because he couldn’t pay $3,000 for bail; the case was later dropped, and Browder died by suicide. This case highlights how a cash bail system can lead to severe injustices, especially for the impoverished and marginalized.
Bail in India
Chapter 35 of the Bhartiya Nagarik Suraksha Sanhita, 2023, which replaced the Code of Criminal Procedure, 1973, lays down the process for releasing a person on bail :
- Bond: The accused signs a bond agreeing to the bail terms. This often involves a cash deposit, with the amount based on the crime and the accused’s financial situation. The deposit is refunded upon the trial’s conclusion but can be forfeited if the accused violates the conditions.
- Personal Recognisance Bond (PR Bond): For those unable to pay, courts may consider a PR bond, which requires the accused to arrange the cash within a specific time after their release. However, the article notes that these pleas are often rejected by trial courts.
- Bail Bond: This involves a third-party surety, such as a friend, family member, or employer, who guarantees the accused will abide by the conditions and appear for trial. This person may need to demonstrate financial stability, such as through a solvency certificate in Mumbai courts.
Types of Bail
| Type | Description | Legal Provision | When ? |
| Regular Bail | Granted to a person who is already arrested and in police or judicial custody. The purpose is to secure their release from jail pending investigation and trial. | BNSS, Chapter 35, Section 480 and 483 (equivalent to CrPC Sections 437 and 439). | After a person has been arrested for a cognizable offense (bailable or non-bailable). |
| Interim Bail | A temporary and short-term bail granted by a court. It’s a stop-gap measure to provide immediate protection from arrest while an application for regular or anticipatory bail is pending. | Not explicitly defined in law, but courts use their discretionary power under BNSS to grant it. | When an accused needs temporary relief from custody for an urgent reason or while waiting for a decision on their main bail application. |
| Anticipatory Bail | A pre-arrest bail granted to a person who apprehends arrest for a non-bailable offense. It is a direction from the court to release the person on bail immediately if they are arrested for the specified offense. | BNSS, Chapter 35, Section 482 (equivalent to CrPC Section 438). | Before a person is arrested, when they have a reasonable fear of being taken into custody for a serious crime. |
| Statutory/Default Bail | A right to bail that arises when the police or an investigating agency fail to complete their investigation and file a chargesheet within a legally specified timeframe (e.g., 60 or 90 days, depending on the crime). | BNSS, Chapter 15, Section 187(2) (equivalent to CrPC Section 167(2)). | When the mandatory period for investigation has expired and the accused is still in judicial custody. This is a matter of right for the accused. |
Need for Bail Reform
Many undertrial prisoners remain in jail despite being granted bail because they cannot afford the monetary sum, sometimes as low as Rs 5,000.
- The 268th report of the Law Commission of India (2017) stated that basing bail on monetary surety is “contrary to Constitutional ethos” and could lead to discrimination and infringe upon the fundamental right to a fair trial.
- In 2023, the Indian Supreme Court issued guidelines to address this issue, directing jail superintendents to inform the District Legal Services Authority (DLSA) if an accused remains in prison for more than a week after being granted bail. The DLSA can then send a lawyer or paralegal to help secure the prisoner’s release.
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