In an affidavit, submitted as per the directions given earlier by the Supreme Court, the Centre referred to Chapter XXXV (35) of the BNSS, 2023. The government argued that this chapter lays out a comprehensive framework for bail, bail bonds, and related processes, making it unnecessary to create a separate law just for bail.
NEW DELHI: Today(28th Jan): The Union government has decided not to act on the Supreme Court’s suggestion to create a separate law on bail. The government believes that the recent changes in criminal laws, especially the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which came into effect in July 2024, already address the concerns about pre-trial detention and related issues.
In an affidavit, submitted as per the directions given earlier by the Supreme Court, the Centre referred to Chapter XXXV (35) of the BNSS, 2023. The government argued that this chapter lays out a comprehensive framework for bail, bail bonds, and related processes, making it unnecessary to create a separate law just for bail.
The affidavit stated, “As the provisions relating to bail and bonds in Chapter XXXV of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 are considered adequate, there is no proposal to bring a separate law on ‘Bail’…”
The chapter defines important terms like “bail”, “bail bond”, and “bond”, and also outlines the procedures for granting bail. It includes special provisions to protect vulnerable groups such as women, minors, and those who are physically or mentally unfit.
The government’s position is notable as it reflects a broader change towards integrating reforms within the existing criminal law system rather than creating new, separate legislation. Despite the Supreme Court’s repeated suggestions since February 2022 for a distinct bail law to ensure uniformity and accountability in judicial decisions, the government maintains that the provisions in the BNSS are enough to fulfill these objectives.
The Supreme Court’s call for a separate bail law came in response to ongoing concerns about delays in granting bail and the long periods some accused persons spend in jail awaiting trial. The Court has often intervened, granting bail in cases where individuals have been kept in custody for long periods, even for crimes where the maximum punishment is less than seven years.
Some notable examples include the granting of bail to journalist Mohammed Zubair, arrested for his old tweets, and those arrested in the Delhi excise policy case, including former Delhi Chief Minister Arvind Kejriwal. The Court has also granted bail to the elderly and ailing accused, such as Varavara Rao and Sudha Bharadwaj in the Bhima-Koregaon case.
This response from the Centre was filed in November 2024 as part of the Supreme Court’s earlier instructions, which sought clarity on whether the government planned to draft a separate bail law as suggested in the Court’s 2022 judgment in the Satender Kumar Antil case.
In that ruling, the Court had urged the government to consider creating a “Bail Act” to streamline the bail process, reduce unnecessary arrests, and prevent the prolonged incarceration of undertrial prisoners.
In its affidavit, the Centre also provided updates on the “Support to poor prisoners” scheme, which was introduced to assist undertrial prisoners who cannot afford bail or fines. This scheme, operational since June 2023, has set up empowered committees at the district and state levels to ensure proper distribution of funds.
The Ministry of Home Affairs has allocated Rs 20 crore for this scheme across three financial years, in line with the 15th Finance Commission cycle ending in 2026. However, the affidavit mentioned that some states and Union Territories have failed to comply with the scheme’s requirements.
For example, Bihar, Uttar Pradesh, and West Bengal have not set up the necessary committees. Additionally, five states have not opened the required subsidiary accounts to facilitate the transfer of funds under the scheme. So far, only eight states have used the funds, benefiting 45 prisoners with a total disbursement of Rs.9.13 lakh.
The Supreme Court previously highlighted the problems caused by long pre-trial detentions, often resulting from unnecessary arrests and delays in granting bail. In its 2022 judgment in the Satender Kumar Antil case, the Court had urged the government to streamline bail provisions to prevent misuse of arrest powers, especially in cases where the maximum punishment is less than seven years.
The judgment also emphasized the need for greater accountability from investigating agencies and lower courts, which often fail to follow procedural safeguards under Sections 41 and 41A of the CrPC or the Arnesh Kumar guidelines.
Senior advocate Sidharth Luthra, who was assisting the Court as amicus curiae, stressed the importance of addressing systemic gaps that contribute to the suffering of undertrial prisoners. The Court had also sought updates from the Centre on additional measures, such as the establishment of special courts to handle pending cases and the effective implementation of Standard Operating Procedures (SOPs) under the “Support to poor prisoners” scheme.
The Centre’s position on the bail law raises important questions about whether the recent legal reforms are enough to address the deeper issues in the criminal justice system.
These concerns are expected to be discussed further in the upcoming hearing on February 12, 2025.
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