Report No. 268
Chapter - XI
11.1 Arbitrary incarceration of a person accused of an offence is inimical to every notion of fair administration, therefore, by encouraging practices that avoid unnecessary and excessive incarceration, the Law Commission through the following set of recommendations strives to promote constitutionally fair practices of Bail. Any bail practice that result in the incarceration of the accused person without meaningful consideration to ability to pay, alternative methods of ensuring appearance at a trial and the nature of the crime is violative of the rights of the accused.
11.2 Mere suspicion cannot be a valid ground for the arrest unless the suspicion is well founded. Right to bail of a person accused of an offence which primarily rests on the presumption of innocence in favour of the accused person in a pre-trial stage, has to be weighed against the competing interest of society and public justice. The benefits of the current system of bail provision are clear: the person accused of an offence should not be deprived of their liberty, even for a short duration, the liberty and freedom are precious component of right to human dignity. A note of caution must be exercised in so far as the overtly euphemistic characterization of those accused of heinous crimes may disguise the ground reality. By granting bail to an accused person who poses threat to the justice system and the community at large in an indiscriminate manner and for extraneous consideration amounts to putting the society at a significant risk.
It must be noted that 78 per cent of the convicts are in prison for offences punishable with imprisonment of 7 years and above; whereas 57 per cent of the undertrials are in prison on an average for 3-6 months264. Given the time needed to complete a thorough investigation of serious offences, it must be considered whether granting bail without restraint and conditions furthers the State's interest in protecting its citizens, when the premise of citizen protection is at the core of any acceptable version of the social contract. Under such circumstances, why is the right to bail absolute, while the right not to be victimized by an accused gets no weight in the bail policy calculation?265 Surely these two fundamental rights have to be balanced against one another, unless one believes that the State has no duty to protect its innocent citizens from those likely to cause harm266.