Editorial 2: Trump targets 'cashless bail': How bail works in the US and India.
Context:
US president has signed an order which reduces the federal funding for those jurisdictions which allow cashless bails. The reason cited for this executive order is the rise in crimes and the rapid release of dangerous criminals. Also, it stated that authorities end up arresting the same individual multiple times.
Cashless Bail system in US:
- The major concern while granting bails is that accused may evade trial or interfere with the ongoijng probe by destroying evidence or influencing witness.
- Due to these concerns, courts set the conditions while granting the bail. One such condition is the surety that the accused do not abscond during the trial. As a result of getting this surety, courts demand the cash deposits. Failure to give these deposits force the accused to remain in jail till trial gets over.
- Cashless bails are demanded due to the reason that failure to meet the requirement of these deposits keeps the innocent under trials behind bars even for petty crimes.
- Cashless bail concept originated after the case of Kaleif Browder. He was a Black teenager, who spent about 3 years in jail on the charges of stealing a backpack after being unable to pay $3000 for bail. He died by suicide in 2015. Eventually, the case against him was dropped
Bail System in India:
- Bail system is provided in chapter 35 of the Bhartiya Nyay Sanhita, 2023 which replaced the Code of Criminal Procedure, 1973.
- Accused need to sign a bond which contains the terms of the bail. This assures the court that they will be present to face the trial.
- They also need to submit a cash deposit which can be fortified if bail terms are violated. This amount depends on the nature of crime and the economic condition of accused. It is refundable at the end of the trial.
- For accused that may not have cash to deposit in the court, they may be released on a personal recognizance bond (PR bond). It needs them to furnish the cash within stipulated time.
- There is also the provision of bail bond, whereby another person provides a surety and submits the required amount to assure the court that accused will abide by the bail conditions.
- These bail bonds may be signed by friends, family or employers. The person signing such bond may also be required to show that they have financial asset or a permanent place of residence which can be used as a security.
Reforms in Bail system:
- Many under trials are currently in jail despite getting the bails from the courts as they may not have required amount to submit to the courts. In some cases this amount is as low as Rs.5000.
- Law Commission’s 268th report released in 2017 states that granting or refusing bails on monetary surety is against the constitutional right to fair trial. It leads to classification and discrimination on monetary basis.
- In 2023 judgment, SC held that if accused remains in jail even after granted bail for a period extending one week, the jail superintendent needs to inform District Legal Services Authority (DLSA). It will arrange for a lawyer which will assist the release of such prisoner.
- PR bonds pleas are often rejected.
Way Forward:
According to NALSA, more than 5000 under trials were languishing in jail despite grant of bail. This leads to overburdening of jails and monetary pressure on State. Jails have become a place of punishment rather than being a place of reform. Bail should be treated as rule, not as exception. Court must balance between the person’s liberty and his availability for trials while granting bail.