Make bail the norm, not jail

We welcome the Supreme Court’s advice against automatically sending an accused off to jail after framing charges against him. Innocent till proven guilty should not be an empty slogan. The routine and automatic jailing of accused persons curtails individual liberties guaranteed by the Constitution, often without reason. It is also a process that strains an already overburdened prison system. For people without means, it becomes a sure ticket to incarceration, irrespective of they being guilty or not. The apex court’s advice should lead to a re-examination of the system that has created a large undertrial population in the country’s jails.

An order to jail or remand to judicial or police custody an accused, after charges have been brought in a court of law, should be given only in case the accused poses a flight risk, can tamper with evidence or threaten witnesses, or is likely to commit another crime. However, it has now become routine to jail the accused even if the offences are bailable or if the accused has cooperated with investigators. The decision whether the accused should be jailed is that of the judge, and it is important that the order record the reasons for denying bail. This advice should not simply be applied to the accused in high-profile cases or to accused who are themselves influential public figures. This should begin a thorough review of the approach of the justice system to cases.

There are nearly 3.5 lakh undertrials in India; 70% of the prison population is that of undertrials. Many of them would have served a portion or even the maximum possible prison term for the crime they have been accused of irrespective of their guilt. The courts should be serving justice, not becoming an instrument of injustice.