Bail reforms: What are bail conditions and how do they affect the accused person's rights?

The Supreme Court recently struck down bail conditions that required the accused to drop a pin on Google Maps and obtain a certificate from the country embassy.

A Nigerian foreign national facing trial under sections of the NDPS Act, punishable with seven years or more, was granted conditional bail after spending eight years in prison from 2014 to 2022. On his release, in addition to monetary conditions, he was asked to produce a certificate from the High Commission of Nigeria not to leave the country and drop a pin on Google Maps— both of which became the point of contention before the Supreme Court. While deleting both of these conditions, the apex court noted that when an accused is released on bail, imposing conditions that allow the police to track their movements constantly conflicts with their right to privacy and is thus impermissible.

Granting bail involves a delicate balance for a court. (Getty Images/Purestock)

What are bail conditions?

Granting bail involves a delicate balance for a court. The accused is presumed innocent until proven guilty; thus, their liberty cannot be indefinitely curtailed. At the same time, the victim awaits justice and is entitled to a thorough investigation and fair trial, which requires the accused's participation.

Although bail allows the accused to await trial outside of jail and put up a strong defence, the court must ensure their participation in legal proceedings and safeguard the victim’s rights.

Therefore, courts often supervise bail releases by imposing certain conditions to maintain this balance.

These conditions range from periodic check-ins and financial obligations to providing solvent sureties or performing community service. Conditional bail ensures that the accused actively participates in the trial with minimal intrusion to his liberty.

Moreover, if these conditions are breached, the accused may be sent back to prison, reducing their chances of getting bail again. This discourages the accused from using their freedom to disrupt the judicial process. Instead, it encourages them to enjoy their liberty by participating in the dispensation of justice.

What does the law say?

Section 480(3) of the BNSS mandates that when granting bail in non-bailable offences, the court can impose conditions to ensure the accused's attendance at court proceedings, protect witnesses from tampering or intimidation, and prevent the commission of similar crimes. Moreover, the provision allows a court to impose any other conditions ‘in the interest of justice’.

The Supreme Court, in Kunal Kumar Tiwari v. State of Bihar, provided insight into the interpretation of 'interest of justice' under the former Section 437(3) of the CrPC. The Court contextualised this phrase by examining preceding entries within the provision, which aim to ensure the effective administration of justice and expedite the trial process.

The Court emphasised that all conditions under this provision are geared towards these objectives. To interpret the residuary clause, it noted: “There is no dispute that Clause (c) of Section 437(3) allows courts to impose such conditions in the interest of justice. We are aware that, palpably, such wordings are capable of accepting broader meaning. But such conditions cannot be arbitrary, fanciful or extend beyond the ends of the provision.”

In essence, the flexibility granted by this phrase should not be exercised as a carte blanche for arbitrary restrictions but rather as a tool for judges to tailor bail conditions to the specific circumstances of each case while adhering to the fundamental principles of fairness and justice. Therefore, the law establishes clear boundaries regarding what restrictions can be made on a person’s liberty and to what end.

Modification of Bail Conditions

A conditional bail requires the accused to fulfil the release conditions and continue enjoying liberty. Section 485 of the BNSS mandates that the conditions set by a court when granting bail are integral to the bail bond signed by the accused. This means that a release from custody if you meet these conditions, and once granted, adherence to these terms is obligatory.

Should the accused breach these conditions or commit another offence while on bail, the court retains the authority to revoke bail. Therefore, bail conditions serve as the bridge between the grant of bail and release.

According to a report by the amicus in an ongoing matter before the SC on prison reforms, as of January 2023, 5,380 prisoners were granted bail but remained incarcerated. The primary reason for their continued imprisonment despite bail was their inability to furnish the specified bail bonds mandated by the courts. This points towards a particularly inequitable of such bail conditions — imposition of monetary obligation or what is otherwise termed ‘cash bail’.

The key principle in granting conditional bail is to impose conditions in parity with the accused's circumstances. Moreover, bail conditions are not set in stone. Both the earlier and revised criminal codes also include provisions for modifying bail conditions. These provisions empower courts to deem an accused 'indigent' if they fail to meet bail conditions within seven days of their grant, thereby enabling the court to reconsider and adjust these conditions.

The SC recently underscored the need for judicial oversight regarding bail conditions to reinforce this mechanism. In one of its directives concerning the policy and strategy of granting bail, the Court emphasised:

“If bail bonds are not furnished within one month from the date of grant of bail, the concerned Court may suo moto review the case and assess whether the bail conditions warrant modification or relaxation.”

Earlier this year, a three-judge SC bench in the matter of one Ashok Sandeep Singh modified the bail conditions from ₹10 lakh to ₹25,000 and noted, “The purpose of directing an accused who has been released on bail to furnish surety is to ensure that the accused is present to answer further proceedings, including at the trial. Determining the amount of surety at an unreasonably high amount effectively defeats the very purpose of the grant of bail and infringes the right to life and personal liberty of the accused protected by Article 21 of the Constitution."

Bail conditions, including a high amount of money that does not consider the accused person’s circumstances, perpetuates an inequitable divide in the criminal justice system between the rich and the poor. Such conditions unfairly benefit the wealthy, who are more financially equipped to post bail, while the poor must wait for trial in jail because they cannot afford it.

If personal liberty were contingent on a large amount of disposable money, we would create a system that rewards wealth and punishes poverty. Instead, courts are encouraged to use the provisions for release on personal bonds where there is no significant risk of non-appearance, and the accused has strong community ties.

Bail conditions — intended for prevention, not Punishment

An underlining factor throughout the trial is that the person facing trial is deemed innocent until proven guilty. These individuals may ultimately be found innocent. Given this legal fact, criminal justice measures cannot be punitive until guilt is established. Until then, all measures, be it detention and arrest or conditional release on bail conditions, must be guarded to maintain the integrity of the judicial process with minimum intrusion into the accused’s liberty.

Therefore, while the court can grant bail and impose conditions, this discretion must be kept in check to ensure its misguided exercise defeats the purpose of bail provisions. The Madras High Court, in a 2017 judgement, had observed: “Grant of bail is an exercise of judicial discretion by the Court based on consideration of several factors. The Imposition of bail conditions is also part of such exercise. It should be based on sound judicial principles. It should not be arbitrary, or mechanical. Imposition of bail condition should not be for the sake of imposition of bail-condition.”

In practice, courts often impose bail conditions that depart from the principles of the criminal justice system. Many of these conditions are considered redundant, inconsistent, influenced by biases and extra-legal factors, or excessive for the accused. For example, in a case where the Madhya Pradesh HC granted bail to a person accused of sexual harassment, the court imposed a condition of tying a rakhi, which not only lacked relevance but also trivialised the victim's experiences.

With provisions and precedents allowing greater flexibility in bail decision-making, the onus now falls on bail-granting judges to navigate this complex landscape effectively. A thorough awareness of the various bail provisions, combined with an understanding of the societal position of the accused, the implications of bail conditions, and the broader social context, is crucial. Judges must be trained to ensure that bail is granted in a manner that transcends the illusion of liberty, ensuring that the conditions of release are neither excessively numerous nor unduly restrictive.

The test emerging from the existing legal framework is simple –any condition imposed by the courts should be rationally connected to the objectives of bail, taking into account the specific circumstances of the accused and the offence, be realistic, and be minimally intrusive and proportionate to any risk.

The current practice of granting bail, including imposition of conditions, requires a collective reimagination, making it more justice-oriented than punitive. This must be done in the context of confronting the hidden costs of bail conditions — their impact on lives, families, and communities.

Bail provisions are an opportunity to break free from cycles of incarceration and recidivism, overcrowded jails and strained judicial resources. Most importantly, reform measures must heed the human toll of bail conditions, striving to restore dignity and fairness in our pursuit of justice for all.

Shrutika Pandey is a lawyer and researcher specialising in access to justice. She engages in developing strategies to advance the rights of undertrial prisoners through legal representation, research, and advocacy. The views expressed are personal.