Updated: Mar 14, 2021


“Bail is the right and jail is the exception.”[1] The Criminal Procedure Code, 1973 (CrPC) does not explicitly define bail and the current law is very problematic.[2] This leads to the main issue at hand, which is excessive discretion left for the Magistrates.[3] Henceforth, curbing judicial discretion and amending the current legislations on bail is a necessary step towards achieving an equitable law on bail.

Higher courts have often discussed the importance of not asking for an exorbitant amount of money before providing bail. However, the implementation at the ground level remains problematic. Scholars have long called for eliminating the use of money bail because the primary driver of unnecessary pretrial detention is unaffordable bail.[4]


The head of the People's Vigilance Committee of Human Rights, stated that "Justice seems very costly for the poor in India”.[5] There are several issues which must be resolved for a more equitable law on bail.[6]

  1. Issues with the law

CrPC does not specify a particular amount that can be asked. Besides, there is no specific provision for appeal against orders refusing to grant bail under Section 436(1)[7].[8] Thus, the Courts are often not sensitive to the plight of the weaker sections of the society. The phrase “if he thinks fit” leaves the scope too wide in the code.[9] Section 436A of CrPC[10] is often not followed and directions given by the Courts in several judgments are simply ignored.

Though courts have constantly reiterated that granting bail is a rule and its rejection is an exception, the data of under trial prisoners tells a different story.[11] For example, according to the 78th Law Commission Report, roughly 55% of the total prisoners in the country were undertrials in 1977.[12] Also, the NCRB statistics of 2018 show that out of the 466084 prisoners in all the jails in the country, 323537, that is 69.41%, are undertrials.[13]

  1. Issues with judicial discretion

The origin of the problem is traceable principally to the method in which courts determine the quantum of bail bonds.[14] The Magistrate may arrive at different decisions depending on if he has rehabilitation or deterrence in his mind.[15] Courts should factor in all circumstances of the offence and the offender, but the accepted practice has been of determining the quantum with only taking the nature of the offence into consideration.[16] This means that the financial status of the offender and the difficulties they may face are ignored.[17]

There is a significant risk of public scorn if a released defendant flees justice while on pretrial release, which makes judges shy away from granting bail.[18] Due to high pressure of increasing number of cases, magistrates often have a paucity of time to decide bail matters.[19]

  1. Higher Courts –

There are several judgements which show the dismay of the highest court towards the current prevalent form of judicial discretion given to the Magistrates.

i. The Supreme Court stated problems with the continued adoption of a monetary approach to deciding bail, calling it 'bogey and an instrument of unjust incarceration.’[20]

ii. Gudikanti Narasimhulu[21] held refusal of bail merely due to an inability to pay to be unreasonable and insensible.

iii. In the case of Nanu Gordhan, [22] the judge held that asking a poor man to provide an excessive bail amount is the same as refusing bail to him completely.

iv. Justice Krishna Iyer discussed the unfair bail system in India in the case of Balchand [23] and in Moti Ram[24] by stating that judges need to be more inclined towards bail than jail. He said that under Section 440[25], the amount of every bond should be decided with due regard to the circumstances of the offender.[26]

v. In Gurcharan Singh[27], Justice Goswami said that, “there cannot be an inexorable formula in the matter of granting bail.”

vi. The judgement of Hussainara Khatoon[28] highlighted that there were several under trial prisoners who are not financially capable to take advantage of their rights and pay the bond amount. In the case, Justice Bhagwati, while referring to Maneka Gandhi v Union of India[29] stated that any system where the most indigent prisoners are unable to avail bail due to their financial status cannot be said to be ‘fair, reasonable and just’.[30]

Hence, it is a matter for empirical research at the level of trial courts to find out how far these worthy pronouncements of the highest Court of the land are observed in practice by the magistrates.[31]


The problem of excess level of judicial discretion is not only limited to India. There are currently 434,000 people awaiting trial in jail in the United States.[32] Racial disparities are particularly prominent in the setting of bail; black defendants are 3.6% more likely to be assigned monetary bail than white defendants and receive bail amounts that are $9,923 greater.[33] Less lenient values of bonds are given to black and Hispanic defendants because of the beliefs that they are more dangerous.[34]

  1. How it connects with India –

Therefore, this is another example of how the bail system is biased towards the privileged even in other countries. Economic status is merely one of the bases on which the judiciary has been given the “authority” to discriminate.[35] Once we bring in the ideas of race and caste into question, there are not a lot of things left out of the ambit of judicial discretion. Poverty is often connected with one’s caste, religion etc. as these characteristics influence income outcomes.[36]


Our bail system at present is very unsatisfactory as it suffers from an extremely property-oriented approach.[37] This is also a critique of the Marxist school of thought regarding the justice system. Capitalism has deep roots inside the criminal justice system and is based on the erroneous assumption that the future risk of monetary loss is the only deterrent for an offender to stop him from fleeing.[38] Marxist criminologists argue that the legal system is designed to uphold capitalism by keeping the proletariat in a state of poverty and powerlessness as the laws created are by the bourgeoisie in power.[39]

Justice Krishna Iyer says, "we have to interdict judicial arbitrariness, deprivatory of liberty, and ensure fair procedures which have a creative connotation".[40] The most important consideration before the court while practising judicial discretion should be the capability of the accused to pay the bail amount, because the object of the code is not to penalise the accused.[41]

  1. Possible amendments in the law

The Law Commission has provided several recommendations.

  1. Recommendations –

i. One of the recommendations made by the Law Commission was to expand the category of bailable offences in the code itself and specify in detail the amount which can be asked for with respect to particular offences.[42]

ii. Further, the Law Commission has suggested that except in case of serious offences like murder, dacoity, robbery, rape and offences against the State, the bail provisions should be made liberal.

iii. Bail should become the general norm, except where it is apprehended that the accused may evade arrest or where it is necessary to prevent him from committing further offences.[43]

iv. The 78th Law Commission Report suggested adding an explanation in Section 436 (1)[44], which allowed the undertrials who were unable to furnish bail due to reasonable circumstances, to secure a bond without any sureties.[45]

  1. Change in attitude –

The police should exercise caution before deciding to deprive an accused person of his/her personal liberty.[46] The police can be allowed to do random checks to ensure the accused doesn’t abscond.[47] Improving pretrial representation would likely expand release rates while also making individual decisions fairer.[48]

  1. Amendments –

Besides just a change in attitude, amendments in the Code which expressly define bail and lay down conditions which need to be followed would go a long way. There should be a requirement for the Magistrate to record his reasons for refusing bail in writing. If a defendant is bailed only on his own recognisance, if he fails to turn up, he can be made to forfeit the recognisance.[49]

  1. Possible ways to curb judicial discretion

There cannot be an inflexible rule which rests principally on the Magistrate’s discretion.[50] In India, the courts are often viewed as means of justice that are only accessible to the rich.[51] Focus should be on objective evidence and not the juror’s subjective viewpoint.[52] Monitoring judicial agents by tracking individual judges’ release rates might “shame” judges into internalizing some of the societal costs created by their decisions.[53]

Besides merely reforming the law, the judges must also consider the strain on the exchequer and the possibility of him absconding whilst deciding on bail.[54] We require decision support systems to help judges make informed decisions with accurate information at their disposal.[55] Actuarial approaches determine the factors that most accurately predict flight risk to help the judges.[56] The American point system assigns a numerical score to the various elements in the defendant's, curbing judicial discretion further.[57] BDSS is a new computer software developing in the UK designed to assist judges to make the right bail decisions.[58]

Further, the High Court or Court of Session can direct that the bail required by a police officer or magistrate to be reduced.[59] To ensure a fair procedure in dealing with bail matters, the courts must have some clear guidelines.[60] In the absence of rules on a particular subject by a higher court, a lower court enjoys too much power.[61]

This is where the role of the legislature and the judiciary intertwines. Federal and State Bail Commissions can be formed that use actuarial models to prescribe mandatory bail guidelines for judges to follow.[62] Mandatory bail guidelines could make the criminal charge only one factor of many to be considered in a defendant’s likely dangerousness.[63] The bail application should be disposed of on the basis of principles only.[64]


The law of bail in India is blurred semantics.[65] Legislative, along with judicial approach in this direction, should reflect a balance between the twin pillars of justice, which are individual liberty and social interest.[66] Such an inherent right to a decent life, as a right to freedom and personal liberty, cannot be curtailed by something as capricious as not being able to pay a certain sum of money as demanded.[67]

Mandatory guidelines represent a path forward, and in the current era of shrinking budgets, change may be achievable.[68] What we require is to ensure the bail system carefully marries both concerns of it not being too lax or too rigid; it should be able to reduce risk to the public and also protect the rights of the individuals.[69] The presumption of innocence cannot be lost[70] and the conflict between presumption of innocence and pre – trial preventive detention cannot be ignored.[71]



[1] Chandra, U., 2020. Granting bail is the rule and jail is an exception. The New Indian Express, Available at: <>. [2] John Barker Waite, 1929. “Code of Criminal Procedure: The Problem of Bail.” American Bar Association Journal. 15(2):71-75. [3] Luther House, 1956. Criminal Procedure: Some Problems in The Administration of Bail. Kentucky Law Journal. 44(4):447-455. [4] Ronald Goldfarb, JAILS: THE ULTIMATE GHETTO, 33–50 (1975). [5] Fox News, 2015. In India's prisons, high bail demands keep the poor languishing behind bars for years. Available at: <>. [6] Henry Sondra, 1974. Bail and The Poor. Nassau Law. 22(2):69-90. HEINONLINE. [7] The Code of Criminal Procedure, 1973, s. 436 cl. 1. [8] n.d. Bail and Bonds - Draft Reader. Jodhpur: Rajasthan State Legal Services Authority and District Legal Services Authority, Jodhpur, p.23. Available at: <>. [9] Supra note, 7. [10] The Code of Criminal Procedure, 1973, s. 436A. [11] Khurshid, S., Luthra, S., Malik, L. and Bedi, S., 2020. Taking Bail Seriously - The State of Bail Jurisprudence in India. ILI Law Review, 2, p.292. Available at: <>. [12] Chapter 1, Para 4, 78th Law Commission Report. [13] National Crime Records Bureau, 2018. Prison Statistics India 2018. New Delhi: Ministry of Home Affairs, p.11. [14] Monrad G. Paulsen, Pre-Trial Release in the United States, Columbia Law Review, 114 (1966), Caleb Foote, The Coming Constitutional Crisis in Bail: I, University of Pennsylvania Law Review, 995 (1965) and Caleb Foote, The Coming Constitutional Crisis in Bail: II, University of Pennsylvania Law Review, 1180 (1965). [15] Onyeka Uche Ofill, “Bail Decision Support System”, The International Journal of Engineering And Science, 3:8 (2014). [16] John V. Ryan, The Last Days of Bail, The Journal of Criminal Law, Criminology, and Police Science, 544 (1967). [17] Discriminations against the Poor and the Fourteenth Amendment, Harvard Law Review, 447 (1967). [18] Keith Swisher, “Pro-Prosecution Judges: Tough on Crime, Soft on Strategy, Ripe for Disqualification,” 52 ARIZ. L. REV. Keith Swisher, Pro-Prosecution Judges: “Tough on Crime,” Soft on Strategy, Ripe for Disqualification, 52 ARIZ. L. REV. 364 (2010). [19] Supra note, 15. [20] Vijay Singh vs Murarilal, A.I.R. 1979 S.C. 1719, para 2. [21] Gudikanti Narasimhulu vs Public Prosecutor, 1978 A.I.R. 429, para 7 – 8. [22] Nanu Gordhan vs State of Gujarat, (1995) 2 GLR 1698, para 5. [23] State of Rajasthan, Jaipur vs Balchand, A.I.R. 1977 2447, para 2. [24] Moti Ram and Ors. vs State of Madhya Pradesh, A.I.R. 1978 S.C. 1594, para 4. [25] The Code of Criminal Procedure, 1973, s. 440. [26] Supra note, 8. [27] Gurcharan Singh vs State (Delhi Administration), 1978 SCR (2) 358. [28] Hussainara Khatoon vs Home Secretary, State of Bihar, 1979 SCR (3) 532, para 10 – 11. [29] Maneka Gandhi vs Union of India, 1978 SCR (2) 621. [30] Supra note 28, para 6. [31] Das, B., 1985. Bail: Judicial Discretion. Cochin University Law Review, 9, p.361. Available at: <>. [32] Minton Todd D., Zeng Zhen 2016. “Jail Inmates at Midyear 2015,” Technical Report, Bureau of Justice Statistics\Bulletin. [33] Arnold, D., Dobbie, W. and Yang, C., 2018. Racial Bias in Bail Decisions. Harvard Scholar, [online] p.1. [34] DEMUTH, STEPHEN, and DARRELL STEFFENSMEIER. "The Impact of Gender and Race-Ethnicity in the Pretrial Release Process." Social Problems 51, no. 2 (2004): 222-42. doi:10.1525/sp.2004.51.2.222. [35] Bail: The Need For Reconsideration. Northwestern University Law Review. 59(5):678-695 (1965). [36] Amit Thorat, Ethnicity, Caste and Religion: Implications for Poverty Outcomes, 45, no. 51 Economic and Political Weekly, 47 (2010). [37] J. Richard Smith, 1968. “Bail or Jail: Towards an Alternative.” University of Florida Law Review. 21(1):59-72. [38] Sharma, Sudesh Kumar. "DIMENSIONS OF JUDICIAL DISCRETION IN BAIL MATTERS." Journal of the Indian Law Institute 22, no. 3 (1980): 351-70. [39] Steven Vago, Law and Society (Prentice Hall 9) (2009). [40] Supra note, 20 para 6. [41] Fred W. Pope, 1968. Bail Pending Appeal: How Much Discretion. University of Florida Law Review. 21(1):117-122. [42] Chapter 10, Para 1, p.119, 177th Law Commission Report. [43] Chapter 10, Para 1, p.116, 177th Law Commission Report. [44] Supra note, 7. [45] Supra note, 12. [46] Supra note, 8. [47] CTV Local News, “Keeping Tabs on Criminals Out On Bail,” (2009). [48] Douglas L. Colbert, “Prosecution Without Representation”, 59 BUFF. L. REV. 1725-1726 (2011) [49] Keith Bottomley and Susanne Dell, “Bail Procedures in Magistrate’s Courts: Report of The Working Party”. The British Journal of Criminology, 15:1 (1975), at 82. [50] State of Gujarat vs Lohana Lakhu Amarish, A.I.R. 1968 Guj. 77, para 4. [51] n.d. “Justice Still Not Accessible to Poor: Law Minister”, Times of India (2015), Available at: <> [52] Larry Laudan, “Truth, Error, and Criminal Law: An Essay in Legal Epistemology”, Cambridge Studies in Philosophy and Law, CUP, Cambridge (2005). [53] Cf. Adam M. Gershowitz, “An Informational Approach to the Mass Imprisonment Problem”, 40 ARIZ. ST. L.J. 47, 50 (2008). [54] "Jail, Bail and the Poor." Economic and Political Weekly 46, no. 51 (2011): 8. [55] U.J. Schild, “Criminal Sentencing and Intelligent Decision Support”, (1998) Artificial Intelligence and Law, 6:151. [56] Christopher Slobogin, Risk Assessment, THE OXFORD HANDBOOK OF SENTENCING AND CORRECTIONS 121-123 (2012). [57] Supra note, 49 at 87. [58] Supra note, 15. [59] Supra note, 8. [60] Judicial Discretion in Granting Bail, St. John’s Law Review. 27(1):56-77 (1953). [61] Supra note, 15. [62] Samuel R. Wiseman, “Fixing Bail”, 84 Geo. Wash. L. Rev. 417 (2016). [63] Marc Miller & Martin Guggenheim, “Pretrial Detention and Punishment”, 75 MINN. L. REV. 335, 377 (1990). [64] Jim Cameron, “The Standards for Determining Excessive Bail”, University of Kansas City Law Review. 20(2):171-175 (1952). [65] Bharat B. Das, “Bail: Judicial Discretion”, Cochin University Law Review 9 (1985), p. 351. [66] Robert C. Taylor, 1952. “Criminal Law: Discretion of Court in Fixing Noncapital Prosecutions.” University of Florida Law Review. 5(1):29-34. [67] Christine Scott-Hayward, Sarah Ottone, “Punishing Poverty: California’s Unconstitutional Bail System”, Stanford Law Review Online. 70:167-178 (2018). [68] Supra note, 62. [69] Supra note, 15. [70] Myles F. McLellan, “Bail and The Diminishing Presumption of Innocence”, SSRN (2010). [71] Una Ni Raifeartigh, “Reconciling Bail Law with The Presumption of Innocence”, Oxford Journal of Legal Studies, 17:1 (1997), at 21.


Author - Aashna Gupta

Student at O.P. Jindal Global University

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