CrPC in the Time of Crisis: Why We Need to Rethink Bail under the Bail Bonds and Sureties System

The Bail Bonds and Sureties System under the Code of Criminal Procedure (CrPC) has been under fire for years, with many arguing that it disproportionately affects the poor and marginalized. It's time to rethink the way we approach bail in India.

The Problem with Bail under CrPC

The Bail Bonds and Sureties System, as outlined in Section 438 of the CrPC, allows for the grant of bail to an accused person on the condition that they furnish a bail bond. However, this system has been criticized for being inaccessible to those who cannot afford it. The bail amount is often set at an unrealistic level, making it difficult for people to secure their release from custody.

"Justice must always be open to the poor and the weak as well as to the strong and the rich." - Justice H.R. Khanna, Kesavananda Bharati v. State of Kerala (1973)

The Need for Alternative Bail Systems

In recent years, there have been calls for the introduction of alternative bail systems that do not rely on the Sureties System. One such proposal is the "Cash Bail" system, where the accused person is required to pay a fixed amount of money to secure their release. This system has been successful in countries like the United States and the United Kingdom, where it has been shown to reduce the number of people in pre-trial detention. Another alternative is the "Release on Recognizance" system, where the accused person is released on the condition that they appear in court at the designated time. This system relies on the individual's promise to appear in court, rather than the guarantee of a surety.

The Future of Bail under CrPC

In 2020, the Supreme Court of India issued a landmark judgment in the case of Arnesh Kumar v. State of Bihar, where it held that the Sureties System was unconstitutional and that alternative bail systems should be introduced. While this judgment was a major step forward, much work remains to be done. As law students and junior advocates, it's our responsibility to stay informed about the latest developments in the field and to think critically about the laws that govern our society. In the next part of this series, we'll be exploring the potential implications of alternative bail systems on the Indian justice system.

A Real-World Scenario: The Case of Navtej Singh Johar

In 2018, Navtej Singh Johar was arrested under Section 377 of the Indian Penal Code for allegedly engaging in consensual sex with another man. Despite being granted bail by the Delhi High Court, Johar was unable to secure his release due to the high bail amount and the lack of access to a surety. This case highlights the need for alternative bail systems that are more accessible to all, regardless of socio-economic status.