Inconsistency in Bail: Rethinking Court’s unfettered discretion

By Anubhav Kumar

Stand-up comedian Munawar Faruqui , recently was denied bail by Madhya Pradesh High Court in a strong worded observation by the bench that “Such people shall not be spared”, Freelance Journalist Mandeep Puniya who was covering farmer’s agitation was granted bail by Delhi High Court on settled legal principle of ‘bail is rule and jail is exception’; Journalist Siddiqui kappan was denied bail by Mathura Court on “seriousness of Charge” ; Arnab Goswami was released on bail by the Supreme Court relying on Justice Krishna Iyer’s observation that ‘No person shall be deprived of his or her personal liberty’ and unwarranted aspersions were caused on the victim by the court in Chinmayanand Bail’s order . A common thread running through these independent events is the judicial inconsistency, a growing concern in India’s bail jurisprudence across courts at every level in India and especially while applying discretion available to courts in granting Bail.

Bail is an essential stage of Criminal Justice system in India which is gigantic and complex due to multiple enforcement agencies involved in its implementation. At the core of this scheme are the Police which furnish the job of arresting or detaining the accused, while the Magistrates are the quintessential first line of defense to these accused. The Code of Criminal Procedure lays down the procedure and object of arrest or detention of the accused as, primarily to secure his/her presence at the time of trial and it also provides for non-curtailment of one’s personal liberty if this presence could be ensured otherwise it would be unjust to deprive the accused of same. (The court comprehensively dealt with Arrest guidelines in Arnesh Kumar , also provided under Section 41A of the CrPC). Bail is also to ensure accused is not subjected to psychological and physical deprivation of life in jail as the accused is, innocent until proven guilty which forms cornerstone of criminal jurisprudence in India.

In this pretext, Bail acts as a common safeguard available against unjust pre trials detention and under is primarily a matter of right sanctioned to the accused. A liberal reading by the court in this regard has formed the basis of bail jurisprudence in India, which reflects the idea of “Bail is rule, Jail is exception” as Justice Krishna Iyer for the first time in the case of State of Rajasthan v. Balchand Alias Baliya propounded the doctrine and held that “Detention of an individual infringes his right to life and liberty as guaranteed under Article 21 of the Constitution of India. The main purpose of detention is to ensure easy proceedings by availing the accused for the trials without any inconvenience.” Bail as a matter of right therefore ensures that the constitutional right of ‘personal liberty’ of a citizen is not harassed by criminal justice system and recently Justice DY Chandrachud also reiterated it while holding that ‘deprivation of liberty for a single day is a too many’.

India and Bail Jurisprudence

The concept of bail is not new and can be traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. Derived from a Latin word bajulare meaning to bear a burden, it has seen its growth through English common law and can even be seen in Magna Carta and is concerned with upholding the Human Rights. In India, Bail is regulated under Code of Criminal Procedure and the offences are classified as bailable or non bailable.

The magistrate is empowered under section 436-438 of the CrPC to grant bail as matter of right, generally in bailable offences as a rule and in case of non bailable offences as a matter of discretion exercisable by the magistrate. (In special offences of UAPA or NDPS the bail as a rule does not operate however recently Supreme Court observed otherwise)  The bail provisions except for enquiring into whether the accused is able to execute bond, age & illness does not really penetrates in any uniformity in providing bail and enables the court to exercise discretion, which is non-normative and subjective, thus making it often highly judge centric as the discretion is consolidated therewith, and consequently exposing the Criminal Justice system for the lack of uniformity in bails. The discretion, Lord Mansfield said shall be guided by law, according to him, “Discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful, but legal and regular.”[1].

Indian courts however have tried to incorporate certain principles to guide the court in exercise of discretion, such as enquiring into enormity of the charge, nature of acquisition, severity of punishment which the conviction will entail, danger of witness being tampered with etc. It should be noted at the outset even in this guidance of exercising discretion the law favors allowance of bail which is a rule. These considerations are however, always read with caveat of being “non-exhaustive”, thus leaving scope of non-uniformity in exercise of underlying ‘principle of bail’ and in practice leaving a great unchecked discretion with the judge.

In this regard a ‘uniform set standard’ or guideline in applying discretion to grant bail is a pertinent need of hour. The 21st law Commission under chairmanship of Justice BS Chauhan in its 268th report submitted on bail recommended several changes to tackle this which includes, release of an accused that lacks the financial wherewithal to furnish sureties on the submission of “Aadhaar, PAN card or any other document recognized by law” or ‘victim assessment report’ to be prepared by the prosecutor in consultation with the victim to assess the threat perception to the victim if the accused is released on bail. It also explains that, in determining whether the person is likely to abscond, the court should look at factors other than monetary considerations that may keep the person accused of an offence within the jurisdiction of the court, such as the presence of family, job, other roots in the community etc. However these recommendations can be broadly categorized as “conditions to grant bail”, they do not dig in deeper to formulate any standard to exercise discretion while granting bail and does not serve the purpose.

Uniformity in bail granting standard in other jurisdiction

The bail granting ‘standard’ in UK Jurisdiction leaves no scope of arbitrary court discretion. In the UK initially the Police are empowered to grant bail, much like in India, this is usually on condition that they return to the named police station at a certain date or turn up at court for a preliminary hearing.
Further if it is denied by the police the UK courts can grant bail but are required to follow the ‘uniform standard’ which is ,  When assessing whether to grant bail, courts must – under the Bail Act 1976 (BA 1976) – start with the presumption that an accused should be granted bail, unless there is a justified reason to refuse it.

If a defendant is charged with a crime not punishable with a prison sentence, bail can only be refused if the defendant has failed to surrender to bail in the past and there are grounds for reasonably believing the defendant is likely to do the same thing again.

In the NSW, Australian Jurisdiction, Bail will be granted by a Court if you can satisfy the following two tests in court:

1. Show Cause Test (only applies it it’s a ‘show cause’ offence) 2. Unacceptable Risk Test.

A show cause test is where  the court is only required to be satisfied if the charge is a ‘show cause offence’ outlined in section 16B Bail Act 2013. If it’s not a ‘show cause offence’ (Drug charges, certain charges which attract life imprisonment , other serious charges) , then the court can skip straight to considering the second test, being the unacceptable risk test in order to be able to grant bail. The show cause test requires the accused person to ‘show cause’ or give sufficient reasons to the court as to why it would be unjustified to keep the accused person on remand in jail (without bail) during the court case proceedings. The unacceptable risk test requires the accused person to convince the court to accept that there are no unacceptable risks associated with the granted bail to the accused person, such as history of violence, character of person etc.

These set standards vindicate the criminal jurisprudence and eradicate non uniform consolidation of discretion in granting bail as arbitrary incarceration of a person accused of an offence is inimical to every notion of fair administration


In India exercise of judicial discretion is unedifying attribute of bail laws, however as Abhinav Sikri remarks the unfettered judicial discretion has over time, become unbridled discretion in bail. A normative standard in exercise of granting bail is necessary to remove the risk of Judicial Prejudice of a judge, which is not unlikely in cases of unchecked discretion and to ascertain fairness, which forms essential part of natural justice, not only on papers but in also in practice. It is also to be taken into consideration that bail is as much as a constitutional right and  every judicial process is therefore subjected to Article 21 and ‘procedure established by law’ which is construed expansively now. The discretion in providing bail has assumed abstract notions and does not serve the purpose for which it was initially incorporate which was safeguarding the liberty of a person. It is time for India to look beyond and find a cure to this judicial inconsistency and adopt a uniform standard like that in other jurisdiction  and  limit the scope of unfettered discretion to the extent ,that it does not hamper the ethos of ‘fundamental right’ of liberty a person.

(Writer is an LL.M. Candidate in Constitutional Law at Maharashtra National law University. He tweets at @iam_anubhav)

Featured Image Source: Times of India

This blog first appeared on the personal blog of the writer, to visit, click here.

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[1] Tingley v. Dalby, 14 N.W. 145.

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