Is Bail a right when there is delay in trial ?

Prolonged incarceration due to delay in trials, leads to ?prisonisation. I do believe?bail is definitely the rule and no one should be incarcerated wrongfully??even for an extra minute. Sharing few pertinent judgements related to expeditious bails, an elaboration of cases will follow. 1. Can’t reject bail on ground of expeditious trial: the Supreme Court noted that several High Courts continue to fix a time-line for completion of trial, after denying bail to the accused. It observed this in an SLP by a dacoity accused challenging Calcutta High Court's decision to reject his bail plea but expedite the trial. The SC reiterated the Constitution Bench judgment in High Court Bar Association v. State of UP, which held that Courts should not fix a time-bound schedule for the completion of trials. (Rup Bahadur Magar @ Sanki@ Rabin v. State of West Bengal)

2. Expeditious trial should be included in special statutes like PMLA, UAPA which have higher threshold for bails: The Supreme Court held that expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail in stringent penal statutes . Hence, the requirement of expeditious disposal of cases must be read into these statues.The Court reiterated.(V. Senthil Balaji v. The Deputy Director)

3. Bail Is The Rule, Jail Is The Exception' Even In Special Statutes: The Supreme Court observed that “When there is a case for grant of bail the court should not hesitate to grant bail.Allegations of the prosecution may be very serious, but the court's duty is to consider the case for bail in accordance with law. Now we have said that bail is the rule and jail is the exception is applied even to special statutes. If courts start denying bail in deserving cases, it will be a violation of rights guaranteed under Article 21,"?Jalaluddin Khan v. Union of India

4. Imprisonment Due To Delay In Trial Violates Article 21: Bail Can Be Considered In Such Cases Despite bar Under NDPS Act : Supreme Court Act. It is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)NDPS Act may” the bench observed.

5. An accused has a right to speedy trial, if Prosecuting Agency Can't Ensure Speedy Trial, They Shouldn't Oppose Bail Citing Seriousness Of Offence : The Supreme Court held "If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. “The Bench took a humanist approach and reiterated that criminals are not born but made. JAVED GULAM NABI SHAIKH Versus THE STATE OF MAHARASHTRA

Prisonisation and post exoneration are long painful process. First a person gets adjusted to the prison, letting go of personal identity : when name is replaced by a number.?

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Supreme Court has held “If Prosecuting Agency Can't Ensure Speedy Trial, They Shouldn't Oppose Bail Citing Seriousness Of Offence . Criminals are not born out but made. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.”

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Even in special Acts like Narcotic Drugs and Psychotropic Substances (NDPS) Act, the Supreme Court has held the need for urgency of bail. The prolonged incarceration due to exponential delay in trial infringes Article 21.

That an undue delay in trial can be grounds to grant bail to a person accused of offences under?NDPS Act, despite Section 37 of the law putting heavy limitations on the grant of bail.?

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The Supreme Court referred to concept of prisonisation that happens when an undertrial or convict stays incarcerated for long. Hon’ble Justice Bhatt had cited “?Segregation from free society and deprivation of essential rights leads to a sense of change in the new inmates, as they are assimilated into the inmate culture. This process is termed prisonization.” (Office of Justice Programs)?

Post prison, the person has to reenter society, which is a long mental and emotional process even though physically out of prison, the person carried a prison within.?

In? “Free but Still Walking the Yard”: Prisonization and the Problems of Reentry” by Liam Martin examines prison and post prison in light of habitus which is basically concept of people responding to social world they inhibit by personal habits, skills and character. Martin compares the two worlds: inmate and outside.

Long incarceration and delay in trials cause grave injustice , especially to those belonging to economically weaker sections. There is financial burden on families along with alienation from society.?

It also brings to mind how undertrials and incarcerated lose their Right to vote, in India.

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In the end bails are more important than crowding the prisons as rehabilitation is more important than retribution .

After release from prison, most people suffer from Post Traumatic Stress Disorder. The psychological, emotional, physical and economic effects of incarceration are hugely under-reported.?

?Even though Satinder Antil vs CBI judgement observed that, “An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. A presumably innocent person must have his freedom to enable him to establish his innocence.”

NCRB report of 2021 shows that a total of 5,54,034 prisoners were confined in various jails across the country. Out of this 77.1 % (4,27,165) were under trials.?

There was a hike of 14.9% in the number of undertrial prisoners from 2020 to 2021.

In 2022, the number of prisoners was 5,73,220

Supreme Court has also held that Expeditious trial should be included in special statutes like PMLA, UAPA which have higher threshold for bails.

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Bail Is The Rule, Jail Is The Exception Even In Special Statutes: The Supreme Court observed. Allegations? of the prosecution may be very serious, but it is court's duty to consider the case for bail in accordance with law. If courts start denying bail in deserving cases, it will be a violation of rights guaranteed under Article 21.?