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Pending Bail Applications Violating Fundamental Right under Article 21

Updated: Dec 19, 2021

Authored by Aneesh Raj, a student of NLUJA Assam and Tanya Biswas, a student at RGNUL Patiala.

-Justice V.R. Krishna Iyer.


According to a recent press report of one of the leading newspapers (Dainik Jagran) about 20,000 bail applications are pending before the High court of Patna. As per the report, these applications were filed in month of August-September, 2020 and yet have not been entertained so far by the hon’ble court, setting a new records of pending bail applications. The large pendency of bail applications has created a furore among the legal fraternity and compelled us to re-think about the efficacy of justice delivery mechanism in India.

In its various judgements, the Hon’ble Supreme court of India has said that, “detention of undertrial should be an exception and not a norm”. The legal system of India is based upon the “presumption of innocence of the accused until the guilt has not been proven”. Further, in Aasu vs. State of Rajasthan (Criminal Appeal NO.511 of 2017 Dt.09-03-2017) case, “the Supreme Court has issued certain mandatory guidelines such as any bail application should be disposed of normally within a time frame of one week”. This arising situation seems to be totally different from set norms by the Supreme Court of India and has led to infringement of fundamental rights enshrined in Article 21 of the Constitution of India.

Bail and Its Provision

The idea of bail is a basic part of Indian criminal jurisprudence and a well-recognised principle across the world. According to Black’s dictionary, bail is “Procuring the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court”. It is the conditional release of an accused of a crime who is awaiting trial or an appeal.

The term ‘bail’ has not been defined under the CrPC, 1973, but the term ‘bailable offence and non-bailable offence’ have been stated under section 2(a) of CrPC. It defines bailable offence as follows:- “Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence”. According to Section 436 of CrPC, if an offence is of bailable nature, then in such condition accused is entitled to bail as a matter of rights and not a favour.

Further, Section 436 to Section 450 contains various necessities related to bail and bonds in case of criminal nature. In instance of a Non- bailable offence, grants of bail depend upon the discretion of the court. It has been dealt under section 437 of CrPC 1973. Under this section power to grants bail is permissive and not obligatory.

Protection of Life and Personal Liberty

Under Article 21 of the Indian Constitution, the ‘right to life and personal liberty’ is a fundamental right. Article 21 reads- “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The term life and personal liberty under Article 21 has been given very wide ambit after the landmark verdict in Maneka Gandhi vs. UOI. In its verdict, the apex court stated that the term ‘life’ under Article-21 is not merely an animal existence but much more than that. It includes all those things that make a person’s life worth living. Article 21 consolidates a constitutional ethics and values of paramount importance in a democratic nation. Justice V.R Krishna Iyer has ascribed Article 21 as “procedural Magna Carta ensuring life and liberty.”

How Denial of Bail Affects Fundamental Right under Article 21?

The term ‘personal liberty’ in Article-21 has very wide horizon and it has various aspects. One such aspect is ‘liberty of the body of an individual’ i.e., freedom from the physical restrain or wrongful confinement or detention within the four walls of a prison. In A.K Gopalan vs. State of Madras, the apex court has observed that the physical confinement of an individual affects his enjoyment of rights and liberty to a larger extent.

The administration and functioning of criminal justice system and prevailing conditions of prisoners in jails are highly deplorable and sub-human for a long time. Prisoners gets brutal treatment in jail. They suffer harsh physical and mental torture and all their basic rights get curtailed.

We often hear news of police ferocity, Custodial death, prison maladministration and delayed in trial process of criminal cases. All these led to miscarriage of justice.

The death of a father-son duo named Jeyraj and Benniks respectively in Tamilnadu jail, who were arrested for violating the lockdown norms is enough to put a picture of police brutality in jail.

The right to bail is concomitant of the accusatorial system, which favours a bail system that enables a person to remain out of jail until he is not convicted or a trial is under process.” The way bail system operates today, it causes a massive deprivation of the rights of prisoners, especially of those poor prisoners. There are large number of under-trial prisoners in jail, who are languishing in prison for long times and no institution is there to look after this. This put a wretched picture of states affairs and divulge its apathetic nature against prisoners and further depicts its dearth of concerns for human values.

The sluggishness of the court in dealing with those pending bail applications betrays the insensitivity of our judicial and legal system which remains cold even after such enormous misery and grief resulting from totally unjustified denial of personal liberty.

High pendency of cases, suffering of prisoners and lethargic approaches followed by the High Court of Patna reminds us of the anguish remark of veteran Justice P.N. Bhagwati which he puts forward while dealing with the leading case of Hussainara Khatoon vs. State of Bihar. He observed that “under-trials prisoners constitute 80% of total Bihar’s prison population, their term of imprisonments varies from a few months to several years. In various cases, it happens that confinement period of an undertrial exceeded the prescribed time-limit of punishment for that particular offence they were charged with. They suffer a lot not because they were guilty but because they were too poor”. Poverty and lack of resources cause injustice to them and under trials languished in jail. It violates their enshrined rights under Article-21 and also goes against the established principle of natural justice.

As per Jail committee report of 1980-83 confinement of under-trial prisoners leads to over-crowding of jail. Smita Chakkarburrty, a prison researcher who has interacted with more than 30,000 prisoners in Bihar jail, described in TEDx talk that prisons are so overcrowded that inmate had to tie themselves to the bars because of not enough space to lie down. This perpetrates massive violations of rights and led injustice to an accused and jeopardized his personal liberty. The sluggish approach of the High Court of Patna would further aggravate this issue to a larger extent.

What Steps Should be Taken by High Court?

In order to prevent pendency of bail applications so that civil rights and liberties of an accused can be ensured, it is sine qua non that Hon’ble court should take some robust measures. It includes speedy trial in all criminal prosecutions. Further, it is very much necessary that the reluctance of the subordinate court to grants bails should be discouraged. It is a notion that sub-ordinate courts are reluctant to grants bail. It happens because of its fear of contrary annotations or the trepidation that the lenient approach of granting bail to a suspect may be viewed suspiciously by the High Court. The vacancies at sub-ordinate court and High Court should be filled up to increase the strength of adjudicating machinery, so on.


The Right to speedy trial in all criminal prosecution to seek quick justice is an inalienable fundamental right under Article 21 and it needs to be protected at all costs. An advanced jurisprudence of granting bail is indispensable and vital to a socially delicate judicial process. Reforms in the justice delivery system are very much necessary and dire need of time. Therefore, a systematic approach to deal with pending bail application is required. Until and unless the Judicial and administrative body does not take proper measures, civil rights and personal liberty of an undertrial would remain in prison.

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