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Report No. 268

B. Right to non-discrimination

2.10 The Supreme Court of India in the case of Gudikanti Narasimhulu v. Public Prosecutor, High court of Andhra Pradesh30 observed that:

Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right.

After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of 'procedure established by law'. The last four words of Art. 21 are the life of that human right. The doctrine of Police Power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.

2.11 Under the Indian Constitution, the Rule of Law is perceived as an indispensable tool to avoid discrimination, and arbitrary use of force.31 The present system of bail is heavily influenced by economic status and discriminates against the impoverished and the illiterate. Our judicial system seems to have evolved two approaches to bail-bail as a right for the financially able; and for rest, bail is dependent on the judicial discretion, exercised through manipulation of the amount of "reasonable" bail that will be required32. Often the criteria for setting bail amounts fails to take into account the accused person's ability to pay, hence, the loss of liberty is imminent in the pre-trial detention. Accused person's economic status appears to have become the decisive factor for granting pre-trial release.33

2.12 The UDHR in Article 2 states that every person is entitled to all the rights and freedom in the declaration without any discrimination. Article 2(1) of ICCPR also reiterates the same and further obligates each State party to respect and ensure to all persons within its jurisdiction the rights recognized in the Covenant without discrimination.34 More importantly, Article 26 not only provides for equality before the law but also equal protection of the law. Thus it prohibits any discrimination based on capricious factors such as race, colour, sex, language, religion, political or national origin.35

2.13 The United States Supreme Court in Edwards v. California36 held that the mere state of being without funds is a neutral fact- constitutionally an irrelevance like race, creed or colour. Further, expanding upon indigence and equality in the case of Hobsen v. Hansen37 the court observed that indigent groups are not always assured a full and fair hearing through the ordinary political processes as the present power structure is inclined to pay little heed to even the deserving interests of the politically silent and the invisible minority. These considerations impel a close judicial surveillance and review of administrative judgments that adversely affect them.

2.14 The Supreme Court of United States has stated bail cannot be said to be excess when set at an amount that is higher than the defendant's ability, if the said amount is reasonable.38 Contrarily, in Griffin v. Illinois,39 the U.S Supreme Court in its dissenting judgment has questioned:

"Why fix the bail at any reasonable sum if a poor man can't make it?" The effect of mandating an unreasonably high bail is that the indigent is denied equal protection of the laws, if he is denied his freedom on equal terms with other non-indigent person accused of an offence solely on the basis of his indigence.40

2.15 The grant or refusal of bail on economic conditions i.e. monetary surety, violates Articles 14 and 15 of the Constitution of India and runs contrary to the constitutional ethos. Further, it has no correlation with the objective sought i.e. assurance of appearing at every stage of the trial along with the presumption of innocence until proven guilty.41 However, it must be remembered that in every case where the indigent is unable to afford bail the indigent is not being discriminated against, but the state only demands some security that such accused person will appear at the trial.42

The threat of forfeiture of one's goods may be an effective deterrent to the temptation to break the conditions of one's release.43. Thus, persons of different financial status would find the motivation to appear before trial at varying amounts of bail, it only seems logical that an effective system of bail considers the individual's ability when setting such amount.44 The current system of bail based on financial control and objective assessment would lead to suspect classification and discrimination. Moreover, it would also impinge on the fundamental right to fair trial.

Amendments to Criminal Procedure Code, 1973 - Provisions relating to Bail Back

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