–

FACULTY OF LAW

UNIVERSITY OF DELHI

YLM – 102: LEGAL AND SOCIAL SCIENCE RESEARCH METHODS

RESEARCH PROPOSAL ON

UNLOCKING JUSTICE: AN EMPIRICAL STUDY OF BAIL PRACTICES IN INDIA

SUBMITTED TO:
DR. DIKSHA MUNJAL
FACULTY, LEGAL AND SOCIAL SCIENCE REASEACH METHODS
ASSISTANT PROFESSOR
FACULTY OF LAW
UNIVERSITY OF DELHI

SUBMITTED BY:
ABINASH KUMAR
ROLL NO. - BR07031772
1ST SEMESTER, LL.M. (2 Yrs.)
BATCH- 2023-25
FACULTY OF LAW
UNIVERSITY OF DELHI
 Abstract
Bail stands as a fundamental pillar in the foundation of criminal jurisprudence. Its primary
objective is to alleviate the restrictive and punitive consequences associated with pre-trial
detention of the accused. This involves entrusting the accused either to the custody of a third
party, typically a surety, through the provision of surety bonds, or to the accused's own self
through the execution of a personal bond. The paper undertakes a comprehensive exploration
of the intricacies linked to the concept of bail, aiming to evaluate the real-world impact of bail
and its provisions on society. Consequently, the paper pursues a dual agenda, extending
beyond doctrinal research to include an in-depth sample study that reflects the tangible
manifestations of these provisions in society. The examination of societal responses and the
challenges faced by individuals forms a crucial aspect of the study, emphasizing the
significance of understanding the practical implications of bail provisions. The sample study
reveals concerning factors, indicating the need for reform in the current bail provisions.
According to reports from the Ministry of Home Affairs, a total of 2,31,340 under-trial
prisoners from various States and Union Territories were incarcerated for offenses under the
Indian Penal Code (IPC), while 50,457 faced charges under special laws such as the Customs
Act of 1962, Narcotic Drugs and Psychotropic Substances Act of 1985, Excise Act of 1944, and
others. During 2015, a significant number of 12,92,357 under-trials were released, with
11,57,581 granted bail. This paper aims to shed light on these ground realities as it elucidates
the background of the bail provisions.
Keywords: Empirical Study, Bail Practices, pre-trial detention, bail-bond.
 INTRODUCTION

The concept of bail has a long history, influencing the lives of the local populace during the
reigns of both the Mughals and the British. The term "bail" is defined as a sum of money paid
on behalf of a person accused of wrongdoing, serving as a security for their appearance at trial,
during which they are allowed to remain free.1

Bail is legally described as the process of securing the release of an individual from legal
custody, with an undertaking that they will appear at the designated time and place and submit
themselves to the jurisdiction of the court.2 Bail is when a man is taken or arrested for felony,
suspicion of felony, indicated of felony or any such case, so that he is restrained of his liberty.
And, being by law bailable, offered surety to those which have authority to bail him, which
sureties are bound for him to the King's use in a certain sum of money, or body for body, that
he shall appear before the Justices of Gaole-delivery at the next sessions & c."3 This can involve
a monetary assurance, either through one's own personal bond or recognizance, or with the
involvement of third-party sureties. Historically, bail served as a means to ensure the accused's
appearance at trial or to prevent interference with evidence or witnesses.

The Hon’ble Supreme Court, in Moti Ram v. State of Madhya Pradesh4, clarified that bail, as
defined, includes both release on personal bond and with sureties. It is noteworthy that even
under this expanded definition, 'bail' still refers to release based on monetary assurance.

Bail, at its core, represents a delicate balance between the right to liberty for the accused and
the broader interests of society. The detailed provisions related to bail are outlined in Chapter-
XXXIII of the Code of Criminal Procedure, where bail is granted to offenders based on the
classification of offenses into "bailable" and "non-bailable." Bailable offenses, listed in the
First Schedule or made bailable by other laws, allow for bail as a matter of right. Non-bailable
offenses, on the other hand, permit bail at the discretion of the court, considering the totality of
facts and circumstances.

Bail is further categorized into three types: "bail in bailable offenses," "bail in non-bailable
offenses," and "anticipatory bail" (bail sought in anticipation of arrest). The right to claim bail

1
Investopedia, https://www.investopedia.com/terms/b/bail-bond.asp (last visited 15th Jan, 2024).
2
Rakesh K. Singh, “bail is rule, jail is exception”, The free press journal, (15th Jan, 2024),
https://www.freepressjournal.in/analysis/bail-is-rulejail-is-an-exception.
3
Adv. Naveen Rao, “Bail or jail: A balance of absolute and limited judicial decision”, (2019).
4
AIR 1978 SC 1594.
for bailable offenses is absolute, as established in Rashik Lal v Kishore5, while bail for non-
bailable offenses is discretionary, contingent on the court's assessment of the specific case.

STATEMENT OF PROBLEM

Although the concept of bail is not new, and most people have become accustomed to it, there
is a deep-seated distrust of the criminal justice system. This distrust extends beyond the fear of
punishments and fines to include a reluctance to engage with bail, parole, and similar measures.
This hesitance arises from the belief that once caught in the legal system's complexities, there
is no escape. The general populace not only fears the law but also feels profoundly intimidated
by the entire criminal justice apparatus. Consequently, they are not just uninformed but also
unwilling to utilize these protective measures.

The paper addresses a central hypothesis suggesting that the current provisions concerning bail
and criminal jurisprudence lack practical effectiveness. It contends that these provisions have
limited applicability and are only partially functional. To evaluate the contemporary scenario,
the paper integrates empirical research to understand the actual impact of these provisions.
Additionally, it argues that certain variables influence the implementation of bail provisions,
necessitating a cross-sectional study to examine the on-the-ground situation. The identified
variables include income, education, and the cost associated with accessing legal services. In
contrast, the paper will assess individuals' levels of awareness and opinions based on these
factors.

LITERATURE REVIEW

The chosen research topic is rich with existing literature, offering numerous texts for reference.
However, the methodology adopted by the researchers restricts the resources to be utilized in
the paper. They focus primarily on foundational texts that elaborate on bail provisions.
Furthermore, secondary sources such as case laws and reports from government organizations
also offer sufficient data for the paper.

The paper incorporates a substantial amount of primary data, which is then supplemented by
secondary sources to substantiate the presumed hypothesis. These sources include excerpts
from Ratanlal & Dhirajlal and a review of The Code of Criminal Procedure, 1973. Additionally,
insights from B.B. Mitra's work on the Code of Criminal Procedure deepen our understanding
of bail. The paper also draws upon the perspectives presented in the law journals "Crime" and

5
(2009) 4 SCC 446.
"Journal of Criminal Law & Criminology," both of which are published monthly, to provide a
contemporary overview of bail-related discourse. Furthermore, a critical analysis of data
sourced from the National Crime Records Bureau (NCRB) is included.

RESEARCH OBJECTIVES

The paper adopts a comprehensive four-pronged approach, as follows:

A. To create a comprehensive document that serves as a reader's manual for understanding

bail provisions in India.
B. To consider existing proposals for reforming bail provisions.
C. To identify areas of deficiency that contribute to the ineffectiveness of the current
criminal justice system.
D. To Collect data to gain insights into the realities on the ground.
E. To Ensure sensitization through empirical research to raise awareness levels among the
surveyed individuals.
RESEARCH QUESTIONS

Age Group: The researchers have divided the age groups into four categories to conduct a
more detailed assessment of the survey. This division enables a better understanding of the
target audience and facilitates the research by demonstrating how the implementation of current
bail provisions varies across different age demographics.

Residential Profile: The researchers have refrained from confining the research to a specific
geographical area. They assert that the residential profile of individuals affected by bail
provisions directly influences their implementation. The locality plays a crucial role in
determining how these criminal provisions are executed.

Gender: The paper also asserts a hypothesis that an individual's gender/sex increases their
susceptibility to arrest. Consequently, it was imperative for us to include this as a research
question.

Educational Qualifications: Another crucial factor is an individual's educational background

and the perceived correlation between illiteracy and crime. Profiling in this regard will help the
paper analyze the behavioural patterns of the target audience more accurately and facilitate
more precise answers.
Occupational Profile: Occupational profiling holds significant weight in determining an
individual's vulnerability to arrest. In India, the occupational stratification is strict, leading to
arbitrary attitudes from enforcement agencies toward individuals deemed less valuable in
society. Additionally, one's occupation reflects the financial resources available for active
litigation, ultimately influencing the legal course of action.

1. Have you or anyone you know been detained by the police or any other
enforcement agencies?
This question serves as a litmus test, as only those individuals who answer positively
will be included in the survey. Others will be informed about bail provisions as part of
an awareness campaign, which is an integral aspect of this exercise.
2. Were you able to comprehend the preliminary documents presented by the police
in the court of law?
This question evaluates an individual's basic understanding, and the options provided
help assess their mindset and approachability regarding legal matters.
3. Was there a provision for a bail bond to secure your release or that of your relative
from custody?
This question serves as another litmus test to gauge an individual's awareness of their
arrest and the importance of bail provisions. If a person is unaware of these provisions,
it suggests limited knowledge regarding their arrest circumstances.
4. Are you part of the Below Poverty Line segment?
This question revolves around a significant parameter: whether an individual belongs
to a marginalized section of society, which is assumed to be a strong factor for arrest.
Economic vulnerability is hypothesized as a primary determinant for arrest.
5. How much did you spend throughout the judicial process?
This reflective query illuminates the anguish and financial constraints experienced by
individuals involved in an ongoing legal process. It also underscores the lack of a
standardized payment structure for legal expenses, which varies based on individuals'
residential profiles.
6. Are you aware of the provisions for free legal aid and assistance from the state
government?
This question serves two purposes: firstly, to gauge the individual's level of awareness,
and secondly, to educate the surveyed audience about bail provisions.
 7. Do you believe that individuals without a legal education background can access
the court of law?
This query aims to assess the mindset of the surveyed audience regarding the legal
process and their perception of such institutions. It reflects the sentiments of the masses
and indicates the level of trust they have in the entire legal procedure.
8. Are you familiar with the terms and conditions specified in the bail bond?
This question is intended to assess the individual's comprehension of the entire bail
process.
9. Did you encounter any difficulties following the execution of your bail bond
involving any of the following entities?

This query helps researchers understand the practical challenges individuals face due
to interventions from law enforcement, the judiciary, or third parties. It seeks to
evaluate the effectiveness of existing provisions.

10. Are you knowledgeable about any types of bail provisions?

If so, please provide their names. This inquiry aims to gauge the individual's
understanding of bail provisions, serving as a valid parameter to assess their familiarity
with the subject.

11. Are you aware of the constitutional safeguards against arbitrary arrest?

This question acts as a valid parameter to ascertain the level of familiarity and
awareness individuals have regarding their rights. The paper strongly presumes that the
surveyed audience may not be aware of these safeguards.

12. Do you believe there is a connection between poverty and arrest?

The paper also seeks to explore the relationship between poverty and arrest, aiming to
understand public sentiment regarding the commonly projected notion that individuals
with fewer resources are more susceptible to arbitrary behaviour from law enforcement
agencies.

RESEARCH METHODOLOGY

The paper adopts a cross-sectional approach, utilizing both Doctrinal and Empirical
methodologies to draw conclusions. It encompasses three main objectives: firstly, providing a
comprehensive background study on bail provisions in India; secondly, assessing the practical
implementation of these provisions; and lastly, serving as an awareness campaign by educating
the surveyed audience about bail-related issues and their constitutional rights. Rather than
presenting findings in a traditional format, the paper utilizes pie charts and diagrams to
illustrate real-time impacts of these provisions. Additionally, the paper adheres to the citation
guidelines outlined in the Bluebook 20th edition.

Limitation of Research: The present research topic is confined only to the small sample size
of 40 persons which may not represent the diversity and complexity of bail practices across the
entire Indian legal system. Therefore, the findings of the study may not be generalizable to the
broader population or other regions within India. A small sample size may restrict the depth of
analysis and the ability to explore nuances and complexities within bail practices
comprehensively.

CONCLUSION

After examining all the findings presented in this paper, the researchers can conclude that
there exists a significant lack of awareness among the participants, rendering them vulnerable
due to this deprivation. Additionally, it is evident that the general populace tends to shy away
from involvement in criminal litigation and instead harbours a fear of the court of law. This
fear and apprehension stem from the inadequate implementation of bail provisions, causing
people to be cautious and selective in expressing their opinions. To address this issue, there
is a pressing need to expand the accessibility of the court system to accommodate the public.
Furthermore, a major overhaul of criminal law is warranted, as individuals are often dragged
into court proceedings over trivial matters, and sometimes loopholes in these provisions are
exploited for personal vendettas. The researchers advocate for a redesign of the criminal code,
coupled with the implementation of adequate safeguards for the public. Furthermore, they
propose the elimination of certain minor offenses that are obsolete and serve no meaningful
purpose in contemporary society. Accordingly, the new criminal code should be based on
updated principles of criminal jurisprudence.