November 07, 2026

Bail Is Increasingly Becoming The Exception

By Our Editorial Team
First publised on 2022-11-23 06:50:56

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CJI D Y Chandrachud made a pertinent point when he said that lower court judges were "hesitant" to grant bail in cases of heinous crimes as they were scared that they would be targeted. It is disturbing that despite our jails being full of undertrials, some of whom have spent more time in jail then the punishment for their alleged crime would have got them, and despite the law permitting lower court judges to grant bail, these judges are not willing to exercise the discretion. Bail, not jail has now become just a saying despite several nudges from the Supreme Court that has repeatedly said that the triple test should be applied and bail should be denied only if there are strong chances of the accused absconding, threatening or influencing witnesses or tampering with evidence if set free on bail. As Chief Justice, Justice Chandrachud has taken the first step to prioritize personal liberty by directing the Supreme Court registry to put up at least 10 bail pleas for hearing every day before each of the apex court benches. This is a welcome move.

But bail pleas are first put before the trial court. A majority of such pleas come from accused who are poor and do not have the resources to approach higher courts if there bail is denied. Hence, with lower courts not willing to grant bail, more than 76% of prisoners in Indian jails are those awaiting trial. Further, the higher judiciary is clogged with such bail pleas. Trial court judges must apply the triple test and deny bail only if one or more of the conditions in that test is likely to be violated, unless the law expressly prohibits them from granting bail as is the case in some laws like UAPA, Pocso, SC/ST Atrocities Act or the NDPS, for example.

Talking about the fear of being targeted in the minds of lower court judges, CJI Chandrachud said that "this sense of fear nobody talks about but, which we must confront because unless we do that, we are going to render our district courts toothless and our higher courts dysfunctional." This is absolutely correct both for the rights of the undertials as for the purpose of fair and speedy justice. It will also unclog the jails and reduce the burden on higher judiciary. But for this to happen the Supreme Court must take the lead and issue further and clear guidelines to lower courts or the government must enact a separate bail law as the apex court suggested a few months ago.