In our criminal justice system, the general principle is to grant bail rather than imprisonment, with recognized exceptions. This stems from the foundational belief that an arrested individual is not automatically deemed guilty; the presumption of innocence persists until a conviction is secured. This presumption, embedded in legal systems globally, is acknowledged in Article 11 of the Universal Declaration of Human Rights (1948). Consequently, a person undergoing arrest is entitled to bail, as the deprivation of personal liberty is contingent upon the presumption of innocence.

It is crucial to understand that the presumption of innocence is not a mere technicality but a fundamental principle in civilized legal systems. Denying bail entirely or imposing prolonged restrictions on bail duration raises constitutional concerns. It is essential to recognize that when a person is granted bail, it does not imply exoneration or acquittal. Granting or denying bail does not involve a determination of the individual's guilt or innocence by the court. Instead, it is a measure to ensure that personal liberty is restricted only when necessary, while acknowledging the presumption of innocence until proven otherwise.

The bail jurisprudence in post-independence India is based on Article 21 of the Constitution, which protects not only life but also liberty by mandating that liberty can only be curtailed through the procedure established by law, which must be "just, fair, and reasonable". The same procedural rule that authorizes arrest and detention also allows an accused to seek bail through a variety of procedures ranging from pre-arrest bail to statutory bail.

The Criminal Justice System , starts from the Lower Courts i.e Trial Court and the question of Bail comes to the doorstep of these courts initially. It has been observed that currently the lower courts are not granting bail , as they are apprehensive of the High Court , as the Bail granted can be challenged in the Higher Court. This is resulting in pendency of cases at both level , trial court as well as High Court.

The Supreme Court has established the principle that "bail is the norm, and detention is the exception." Nevertheless, the actual implementation of this principle varies when it comes to under-trial prisoners.

Origin Of Bail And Meaning

In a society, crime is an event in real life and is the product of interplay of different human emotions, and when a crime takes place , it becomes the responsibility of the State to punish the wrongdoer , as State being the agency and represents the common will of the society. The jurisprudence of Common Law System evolved and settled certain principles , so as no injustice is done to the accused and the right of victim is also protected.

These principles are Rule of Law, Presumption of Innocence, Independent Judiciary and Fair Trial, these principles ensures justice and protect the societal interest.The principle of Presumption of Innocence plays a cruicial role in Bail, it is based on the Latin Maxim, Ei incumbit probatio qui dicit, non qui negat which means that the burden of proof is on he who asserts, not on he who denies. The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge.

Article 11 of the UDHR, says " Everyone charged with. Penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."

Article 14(2) of International Covenant on Civil and Political Rights states that Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

The origins of Bail date back to 399 BC, with Plato attempting to establish a connection for the release of Socrates. The contemporary bail system developed from a set of laws that emerged during the medieval period in England.

Bail, within the legal context, refers to the process of securing the release of an individual awaiting trial or appeal from imprisonment. This is achieved by providing a guarantee, often in the form of a deposit, to ensure the person's compliance with the legal obligation to appear at the designated time before the appropriate legal authority. The court with jurisdiction over the detainee determines the monetary value of this security, commonly referred to as bail or more precisely as the bail bond. The security can take the form of cash, property title documents, or a bond from financially capable private individuals, a professional bondsman, or a bonding company. If the individual released on bail fails to present themselves as required, the forfeit of the provided security occurs.

Wharton's Lexicon and Stroud's Judicial Dictionary defines bail as "the setting free of the defendant by releasing him from the custody of law and entrusting him to the custody of his sureties who are liable to produce him to appear for his trial at a specific date and time."

Bail Provision & Procedure In India

The Indian Penal Code,1860 defines offences and prescribe their punishments. Section 2(n) of CrPC also defines offence and from bail point of view the offences have been categorized into two categories – Bailable under Section 2(a) of CrPC and Non- Bailable Offences.

The term Bail , is not defined in both the codes. According to Supreme Court in case of Vaman Narain Ghiya v State of Rajasthan ( 2009 2 SCC 281 ) "Bail is designed as a means of reconciling two fundamental principles of human values: the right of the accused individual to experience personal freedom and the societal interest. This arrangement stipulates that the release is contingent upon a guarantee to ensure the accused person's appearance in court for trial."

In cases of Bailable Offences , the right to claim bail is " and absolute and indefeasible right and there is no question of discretion in granting bail as words of Section 436 are imperative." In cases of Non- Bailable offences judges have full discretion either to grant or refuse bail based on the factual matrix and circumstances of case and the provision of CrPC 437 is clear by incorporating words "may be released on bail."

There are three main types of bail, each applicable at different stages of a criminal case. First, there is regular bail, which is typically sought by a person already arrested or in police custody. This type of bail is pursued through a bail application under sections 437 and 439 of the Code of Criminal Procedure (CrPC). Second, there is interim bail, a temporary release granted before the hearing for regular bail or anticipatory bail. Finally, anticipatory bail, sanctioned under section 438 of the CrPC, can be sought from either the session court or the High Court. Individuals who anticipate potential arrest for a non-bailable offense can file an application for anticipatory bail. This classification caters to various circumstances and stages within the criminal justice process.

The classic and singular criterion for granting bail is the presumption of innocence. This presumption can only be operationalized by allowing the defendant bail, albeit under certain conditions. This procedural aspect is encapsulated in what is commonly referred to as the triple test. The triple test encompasses three crucial conditions to ensure that the individual released on bail does not compromise the legal proceedings: firstly, a commitment not to interfere with witnesses; secondly, a pledge to cooperate fully with legal processes; and thirdly, a guarantee not to flee, thus mitigating any flight risk. This triple test, by virtue of its comprehensive nature, aims to balance the fundamental right to presumption of innocence with the necessity of safeguarding the integrity of the legal process.

Lower Judiciary's Reluctance and High Rate of Bail Rejections

It has been observed , that the bail application filed in the lower judiciary is getting rejected without delving into the question of law and this is leading to large number of accused going to High Court. Recently a data released by DAKSH 'High Court Data' portal "the number of bail appeals filed in India's High Courts surged post 2020, it went up from around 3.2 lakh to 3.5 lakh each year before 2020, to 4 lakh to 4.3 lakh thereafter."

This data revelas that the Judges sitting at lower judiciary are reluctant and somewhere not following the guideline issued by the Supreme Court in Cases such as Gudikanti Narasimhulu Case (1978 AIR 429) , wherein SC gave a detailed guideline for issuing bail. The The Apex court has time and again issued guideline for protecting personal liberty and directed the Lower Courts to not dismiss bail arbitrarily and apply proper reasoning while adjudicating on the Issue of Bail.

In case of A R Antualay v R S Nayak ( 1998 AIR 1531 ) , the apex court said " accused should not be subjected to undue or unnecessary detention prior to his conviction." In case of Arnesh Kumar v State of Bihar the apex court laid down direction to the Police to refrain from the mechanical process of arrest and directed magistrate to check on such arrest. This prevalent norm, where denying bail is the conventional approach adopted by the Lower Judiciary , has created an atmosphere where district judges often refrain from granting bail even when a case for bail is made out on merits.

The fear of facing adverse consequences, such as allegations of corruption or biased decision-making, discourages judges from deviating from this established trend. Legal experts emphasize that a judge's competence is sometimes erroneously assessed based on their alignment with the prosecution. Allegations against judges who grant bail may emerge from various sources, including litigants and lawyers, contributing to an environment where even outside the courtroom, public pressure can sway decisions.

This public scrutiny, especially in cases involving serious crimes, leads trial court judges to adopt a more conservative stance, further diluting the principle that "bail is the rule, jail is the exception." Consequently, the higher courts are burdened with an escalating number of cases, posing challenges to the fundamental principles of the legal system.

It has also been observed that the High Court's frequently overturn the decision of the Lower Judiciary , not on the merits of the case but on the issues such as quality of the bail order written by the trial judge. This highlights the power dynamics , where some High Court judge may potentially asserts superiority over sessions judges without any legal stipulation to support such beliefs. The limitation imposed by higher courts on a trial court's ability to grant bail extent to narrow interpretations of Constitutional Provisions in certain cases.

This power of High Court's to interpret the order of the lower judiciary , influences trial courts reasoning in granting bail which further contributes to the complexity and dilution of the established bail principle. All this complexity have lead to the general rule ,where the advocates at District Level in Court of Session file bail application expecting it to be dismissed and then subsequently approach to the Higher Court. In this process the accuse get deprived of it's personal liberty and suffers economically at the hands of Judiciary.

The Chief Justice of India recently in his inaugural address at the All India District Judges Conference, highlighted that " There is a growing concern about district courts displaying increasing reluctance in addressing issues related to personal liberty. The traditional principle of "bail is the rule, jail is the exception" appears to be eroding, evident in the rising number of cases elevated to higher courts as appeals against trial court bail rejections. The situation prompts a need for a comprehensive reevaluation, and there is a call for insights from district judges nationwide to understand the reasons behind this emerging trend."

The Supreme Court in case of Kavish Gupta v. State of Chhattisgarh (2023 LiveLaw SC 1062) has directed all high courts to ensure that Bail Applications are listed at the earliest as it is the question of personal liberty.

Conclusion
The bail system, deeply rooted in the principles of justice and the presumption of innocence until proven guilty, plays a crucial role in safeguarding personal liberty.

However, the current state of affairs in the lower judiciary, marked by a reluctance to grant bail and a high rate of rejections, has led to a surge in cases being elevated to higher courts. This not only creates a burden on the judicial system but also undermines the fundamental principle that "bail is the norm, and detention is the exception."

To address this issue, it is imperative to implement practical solutions. First and foremost, there needs to be a renewed emphasis on adhering to established guidelines and principles, such as those laid down by the Supreme Court in landmark cases. Lower courts must prioritize a fair and reasoned assessment of bail applications, avoiding arbitrary rejections and ensuring the protection of personal liberty.

Additionally, the legal fraternity, including judges and lawyers, should engage in continuous education and training programs to stay updated on evolving legal principles and ensure uniformity in the application of bail laws. This could help dispel fears among lower court judges, fostering a more confident and principled approach to bail decisions.

Furthermore, the power dynamics between lower and higher courts should be reevaluated. High courts should employ their authority judiciously and prioritize the merits of each case over the quality of bail orders. This could lead to a more efficient and fair judicial system, easing the strain on higher court.

The recent directive from the Supreme Court to ensure prompt listing of bail applications underscores the urgency of addressing this issue. As the Chief Justice of India rightly highlighted, a growing concern about the erosion of the traditional principle of "bail is the rule, jail is the exception" necessitates a collective effort to reestablish and strengthen this fundamental tenet of our legal system. Ultimately, a balanced and principled approach to the grant of bail at all levels of the judiciary is essential to uphold the ideals of justice, protect personal liberty, and ensure the smooth functioning of our criminal justice system.

References:

• INDIA CONST. art. 21.
• Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1973 (India).
• Sudesh Kumar Sharma, Dimensions of Judicial Discretion in Bail Matters, 22, Journal of the Indian Law Institute, 351-370 (1980).
• Black's Law Dictionary.
• https://www.livelaw.in/top-stories/i-want-to-hear-from-district-judges-why-bail-is-the-rule-principle-is-losing-ground-cji-dy-chandrachud-251076
• https://www.thehindu.com/data/data-indian-judicial-data-hides-more-than-it-reveals-in-bail-cases/article67198313.ece
• https://www.legalserviceindia.com/articles/bail_poor.htm
• https://www.thehindu.com/news/national/supreme-court-presses-need-for-reform-on-tedious-bail-processes/article66443774.ece
• https://scroll.in/article/1038633/bail-is-the-rule-jail-an-exception-so-why-are-lower-courts-so-eager-to-lock-up-undertrials