‘Bail is a rule, jail is an exception is a legal doctrine that was laid down by the Supreme Court of India in a landmark judgment of State of Rajasthan vs. Balchand alias Baliya (AIR 1977 2447). The legal doctrine, in this case, was laid down by Justice V. Krishna Aiyer, who based it on fundamental Rights guaranteed by the constitution of India.
The right to bail is concomitant of the accusatorial system, which favors a bail system that ordinarily enables a person to stay out of jail until a trial has found him/her guilty. In India, bail or release on personal recognizance is available as a right in bailable offenses not punishable with death or life imprisonment and only to women and children in non-bailable offenses punishable with death or life imprisonment. The right of police to oppose bail, the absence of legal aid for the poor, and the right to speedy reduce to vanishing point the classification of offenses into bailable and non-bailable and make the prolonged incarceration of the poor inevitable during the pendency of investigation by the police and trial by a court.
The fact that undertrials formed 80 percent of Bihar’s prison population, their period of imprisonment ranging from a few months to ten years; some cases wherein the period of imprisonment of the undertrials exceeded the period of imprisonment prescribed for the offenses they were charged with- these appalling outrages were brought before the Supreme Court in Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360.
Justice Bhagwati found that these unfortunate under trials languished in prisons not because they were guilty but because they were too poor to afford bail. In Mantoo Majumdar v. State of Bihar AIR 1980 SC 846, the Apex Court once again upheld the undertrials right to personal liberty and ordered the release of the petitioners on their own bond and without sureties as they had spent six years awaiting their trial, in prison. The court deplored the delay in the police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of the undertrials, remanded by them to prison. The Court deplored the delay in a police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of under trials, and the magistrate failure to monitor the detention of the undertrials remanded by them to prison.
The travails of illegal detainees languishing in prisons, who were uninformed, or too poor to avail of, their right bail under section 167 Cr.P.C. was further brought to light in letters written to Justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v. State of Bihar (1982) 2 SCC 583. The court recognized the inequitable operation of the law and condemned it- “The rule of law does not exist merely for those who have the means to fight for their rights and very often for the perpetuation of status quo… but it exists also for the poor and the downtrodden… and it is the solemn duty of the court to protect and uphold the basic human rights of the weaker section of the society. Thus having discussed various hardships of pre-trial detention caused, due to unaffordability of bail and unawareness of their right to bail, to under trials and as such violation of their right to personal liberty and speedy trial under Article 21 as well as the obligation of the court to ensure such right. It becomes imperative to discuss the right to bail and its nexus to the right of free legal aid to ensure the former under the Constitution- in order to sensitize the rule of law of bail to the demands of the majority of poor and to make human rights of the weaker sections a reality. The right to bail is concomitant of the accusatorial system, which favors a bail system that ordinarily enables a person to stay out of jail until a trial has found him/her guilty. In India, bail or release on personal recognizance is available as a right in bailable offenses not punishable with death or life imprisonment and only to women and children in non-bailable offenses punishable with death or life imprisonment. The right of police to oppose bail, the absence of legal aid for the poor, and the right to speedy reduce to vanishing point the classification of offenses into bailable and non-bailable and make the prolonged incarceration of the poor inevitable during the pendency of investigation by the police and trial by a court.
The fact that undertrials formed 80 percent of Bihar’s prison population, their period of imprisonment ranging from a few months to ten years; some cases wherein the period of imprisonment of the undertrials exceeded the period of imprisonment prescribed for the offenses they were charged with- these appalling outrages were brought before the Supreme Court in Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360.
Justice Bhagwati found that these unfortunate under trials languished in prisons not because they were guilty but because they were too poor to afford bail. In Mantoo Majumdar v. State of Bihar AIR 1980 SC 846, the Apex Court once again upheld the undertrials right to personal liberty and ordered the release of the petitioners on their own bond and without sureties as they had spent six years awaiting their trial, in prison. The court deplored the delay in the police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of the undertrials, remanded by them to prison. The Court deplored the delay in the police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of under trials, and the magistrate failure to monitor the detention of the undertrials remanded by them to prison.
The travails of illegal detainees languishing in prisons, who were uninformed, or too poor to avail of, their right bail under section 167 Cr.P.C. was further brought to light in letters written to Justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v. State of Bihar (1982) 2 SCC 583. The court recognized the inequitable operation of the law and condemned it- “The rule of law does not exist merely for those who have the means to fight for their rights and very often for the perpetuation of status quo… but it exists also for the poor and the downtrodden… and it is a solemn duty of the court to protect and uphold the basic human rights of the weaker section of the society. Thus having discussed various hardships of pre-trial detention caused, due to unaffordability of bail and unawareness of their right to bail, to under trials and as such violation of their right to personal liberty and speedy trial under Article 21 as well as the obligation of the court to ensure such right. It becomes imperative to discuss the right to bail and its nexus to the right of free legal aid to ensure the former under the Constitution- in order to sensitize the rule of law of bail to the demands of the majority of poor and to make human rights of the weaker sections a reality.
