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Hasty arrests, near-impossible bail show need for overhaul: CJI

General Studies  2

Syllabus: Structure, organization and functioning of executive and judiciary, CJI etc

Source: The Hindu


  • Chief Justice of India said aimless and hasty arrests, locking up undertrial prisoners in jail for long spells and making it almost impossible for them to get bail is proof that the system is in dire need of an overhaul.
  • The CJI said it is a “grave issue” that 80% of the 6.10 lakh prisoners across the country are undertrials.
  • He was speaking later at the Rajasthan Legislative Assembly on the 75 years of parliamentary democracy.
  • He said, the “space for Opposition is diminishing” in the country, the quality of legislative performance is in decline, Intended benefits of laws do not reach the people.
  • The Supreme Court judges have raised the alarm about indiscriminate arrests and the near-impossible chances of getting bail for undertrial prisoners on two separate fronts in a matter of a week.


Article Highlights:

  • More than Two-third of jail inmates constitute undertrial prisoners: The statistics placed before the court indicate that more than two-thirds of the inmates of the prisons constitute undertrial prisoners. Of this category of prisoners, the majority may not even be required to be arrested…” Justice Sundresh observed.
  • A police state cannot exist within a democracy: The judgment underscored that a police state cannot exist within a democracy.
    • In a democracy, there can never be an impression that it is a police state. Both are conceptually opposite to each other,” the top court observed.


How has the Supreme Court ruled on Reforms?

  • Separate Law for Bail: The court underlined that the CrPC, despite amendments since Independence, largely retains its original structure as drafted by a colonial power over its subjects.
  • Uniformity and certainty in the decisions: courts are the foundations of judicial dispensation, persons accused of the same offence shall never be treated differently by the same court.
  • Indiscriminate Arrests: The court noted that the culture of too many arrests, especially for non-cognisable offences, is unwarranted.
    • It emphasized that even for cognisable offences, the arrest is not mandatory and must be “necessitated”.
  • Bail Application: There need not be any insistence on a bail application while considering the application under Sections 88, 170, 204 and 209 of the Code.
    • These sections relate to various stages of a trial where a magistrate can decide on the release of an accused.
  • Direction to States: The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.
What is India’s Law on Bail?
  • The CrPC does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
  • The CrPC empowers magistrates to grant bail for bailable offences as a matter of right.
    • This would involve release on furnishing a bail bond, without or without security.
  • In the case of Non-bailable offences, a magistrate would determine if the accused is fit to be released on bail.
  • Non-bailable offences are cognisable, which enables the police officer to arrest without a warrant.
  • Section 436 of the Code of Criminal Procedure, 1973, lays down that a person accused of a bailable offence under I.P.C. can be granted bail.
  • Section 437 of the Code of Criminal Procedure, 1973 lays down that the accused does not have the right to bail in non-bailable offences.
    • It is the discretion of the court to grant bail in case of non-bailable offences.
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Practice Questions:

Q.Judicial legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution. In this context justify the filing of the large number of public interest petitions praying for issuing guidelines to executive authorities. (UPSC 2020)


With reference to the Chief Justice of India(CJI), consider the following statements:

  1. The procedure to appoint the next CJI is laid out in the constitution.
  2. The President administers the oath of office to the new CJI.

Which of the statements given above is/are correct?

    1. 1 only
    2. 2 only
    3. Both 1 and 2
    4. Neither 1 nor 2

Ans: (b)


  • The procedure to appoint the next CJI is laid out in the Memorandum of Procedure (MoP) between the government and the judiciary:
  • The procedure is initiated by the Law Minister seeking the recommendation of the outgoing CJI at the ‘appropriate time’, which is near to the date of retirement of the incumbent CJI.
  • The CJI sends his recommendation to the Law Ministry; and in the case of any qualms, the CJI can consult the collegium regarding the fitness of an SC judge to be elevated to the post.
  • After receiving a recommendation from the CJI, the law minister forwards it to the Prime Minister who then advises the President on the same.
  • The President administers the oath of office to the new CJI.