Grant of Bail in the age of COVID-19: A Dilemma



The spread of COVID-19 (coronavirus disease 2019) pandemic across nations is an unrivalled situation in recent times and is one of the greatest challenges that we have faced since World War II. It is threatening the lives of people across the world. The only way to restrict its spread and alleviate the imposition of the impact of worldwide lockdown is to have a vaccine. Numerous measures are been taken such as testing people at large scales, tracing travel histories and restricting travel, quarantining citizens and restriction on large gatherings. So there arises a question about overcrowding of jails following the outbreak of the virus as India ranks number fifth in the world prison population. Therefore, releasing prisoners by granting them bail in order to decongest prisons in light of COVID-19 pandemic important or not?
For this, first, we need to throw some light upon the word ‘bail’. It has been derived from a French word ‘baillier’ that means to control, to guard or to deliver. Bail is basically a permit issued by the court that allows a person who is charged with a criminal offence to be out of the jail until his next trial upon the receipt of security to ensure the released prisoner’s later appearance in court for future proceeding. In furtherance of it, the power and procedure to grant bails are discussed.

Power of courts to grant bail

Chapter XXXIII of the code of criminal procedure, 1973 deals with the power and the procedure of grant of bail. The code classifies the offences into two categories, namely; (a) Bailable offences, (b) Non-Bailable offences, and the power to grant bail differs with respect to the offences.
Section 2(a) of the code defines the bailable offence as an offence that is shown as bailable in the first schedule or has been made such by any other law for the time being in force, whereas non-bailable offence means any other offence or in other words, it means any offence punishable with imprisonment for not less than three years. Therefore, the power to grant bail depends upon the severity of the offence. The Indian Criminal Justice System recognizes three types of bail, namely: 
  • Regular Bail: a bail granted to a person who is arrested and is under custody.
  • Interim Bail: a bail granted for a short period. Generally, granted before regular bail.
  • Anticipatory bail: a person anticipating arrest by the police for a commission of a non-bailable offence can apply for the same.

Section 436 of the code entails the power and the procedure to grant bails in respect of bailable offence; an accused can get bail if the following conditions are satisfied: 

  • There are sufficient reasons that the accused has not committed the offence
  • The case requires further inquiry and keeping the accused in custody will be unjust
  • The accused has not committed an offence punishable with death or life imprisonment or imprisonment up to 10 years.
The grant of bail in bailable offence is a matter of right for an accused and in the non-bailable offence, it is at the discretion of the court. The power and procedure to grant bail in respect of non-bailable offences are prescribed under sections 437 and 439. The Supreme Court in the case of Gurcharan Singh, held that the principles to grant bail under sections 437 and 439 are:
  • Nature and the gravity of the circumstances in which the offence was committed
  • The likelihood of accused to flee
  • The likelihood of accused to commit or indulge in any unlawful activity
  • There is likelihood that the accused will tamper with the evidence or coerce the witnesses
  • Delay in the registration of the FIR
  • There is likelihood of personal animosity between the prosecution (victim) and the accused
  • There is reasonable ground for believing that the accused has not committed the offence.
In addition to it, if the accused is a woman or under the age of sixteen or is sick then the accused should be granted bail even if the offence committed by him/her is punishable with death or life imprisonment.

The Dilemma and the Way Ahead

The advent of COVID-19 embroiled the whole criminal justice system into a dilemma. The dilemma before the system is that on one hand, it is the right of an accused to get bail in bailable offences and the overcrowded prison poses a real threat of spreading of the COVID-19 in prison. While on the other hand, it is the duty to follow the lockdown measures imposed under the aegis of Disaster Management Act, 2005.
The Apex court in the case of Kashmira Singh ruled that bail is a right of accused protected under article 21 of the constitution and in Marie Andracase, it ruled that bail should be granted to the accused if his health is in danger. In addition to it, the newly inserted section 436A of the criminal procedure code casts an obligation upon the courts to release an under-trial after completion of a specified period. Whereas, the Bombay and the Rajasthan High court ruled that bail applications cannot be heard/granted during the lockdown period as it leads to administrative difficulties in enforcing such bail orders as the orders are to be sent to lower courts and sureties have to appear to furnish the bonds. This would adversely risk the life of other people and affect the measures taken for a complete lockdown and opined that no right is absolute in nature and is subject to restrictions. Such a stand portrays a clear picture of the violation of the rights of the prisoners.
Thereafter, the Supreme Court took suo-moto cognizance of the overcrowding of prisons and directed all the states/union territories to form a high-level committee to determine the class of prisoners that can be released on bail. However, such committees recommended the release of prisoners that were facing sentences of less than seven years with a stipulation that courts are not precluded from applying their minds to the case before granting bail to such prisoners.
These recommendations imply that prisoners falling outside such categories are not amenable to bail making it a dangerous path for the law to take. Therefore, the pandemic sheds light upon the flawed judicial system of the country and has brought it to a halt. Keeping in mind the failure of our system in dispensing justice during such times, necessary amendments should be bought into the system so that such a situation does not arise in future.
However, in this hour of need, the focus of the authorities should be to curb the spread of the virus in prisons by acting appropriately. Some of the steps that can be taken in furtherance of it could be: 
  • The early released prisoners should be monitored and if possible, they must be advised to observe self-isolation for a certain period
  • The prisoners must be advised to maintain distance from other prisoners and special arrangements can be made for the most vulnerable groups such as aged offenders or offenders suffering from any infirmity
  • The prisoners must be divided into batches and the food must be served to them in different slots to avoid large gathering in prisons
  • The prison staff should be checked and monitored on a regular basis as they might become the cause of the spread of the virus in prison
  • If possible and poses no threat to prison security then wall-mounted soap dispensers, towels, disposable tissues should be made available to the prisoners
  • The medical staff should be advised to treat them without any discrimination and do not perceive them as an enemy of the society
  • Some prisoners must be transferred to less congested prisons in other parts of the states. Apart from this, places in and around the prison must be identified to act as temporary prisons till the time of such an outbreak
  • The prisoners must be made aware of the virus and the risks involved in it, they must also be advised to maintain the required distance while meeting with the visitors/family members and the numbers of visitors should also be restricted during such outbreak
  • The prison must be sanitized on a proportional basis on regular intervals and the things used in prisons like foodstuffs should be sanitized before their use
  • A certain amount of isolation wards must be established and new prisoners must be quarantined, whereas other prisoners must be screened at regular intervals
  • The prisoners could be assigned the job to make masks and sanitizers for their own use as well as for others
The outbreak of COVID-19 has depicted a sad reality that the Indian legal system is flawed and not ready to cope with such an emergency. The attitude of the system should be oriented towards maintaining a balance between individual rights and the need of the society at large.
BY- Animesh Rajpurohit & Priyanka Bothra
(RGNUL), Patiala & Amity University, Noida

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