Speedy Trial Implicit in Article 21; Undertrials With Community Roots May Go on Personal Bond: Supreme Court

The writ petition rested on reports in the Indian Express of 8 and 9 January 1979 that large numbers of men, women and children were in Bihar’s jails awaiting trial, some on trivial charges, for periods ranging from three to ten years (paras 1-2). The State did not appear on 5 February 1979 despite notice, so the Court proceeded on the basis that the allegations were correct (para 2). That day it ordered the undertrials named in the reports released on personal bonds without any monetary obligation, as an exceptional interim measure (paras 4, 7). This judgment gives the reasons for that order (paras 6, 10).

After Maneka Gandhi, a procedure that keeps such large numbers behind bars without trial for so long cannot be ‘reasonable, just or fair’ under Article 21 (para 2). The bail system’s property-oriented insistence on monetary bonds and solvent sureties operates harshly against the poor (para 3). Even under the existing law, courts must abandon the concept of pretrial release only against bail with sureties: an accused with roots in the community who is not likely to abscond can be released on personal bond, judged by factors such as residence, employment, family ties and record (para 4). The amount should be an individualised decision, not fixed by a schedule keyed to the charge, and solvency should not be insisted upon (para 4). "Speedy trial is of the essence of criminal justice"; though not enumerated, it is implicit in Article 21 (para 5). The consequence of denial was left for the final hearing, but the State must set up more courts and man them with competent judges (para 5). Pathak J. agreed that the bail power must not be exercised mechanically and pointed to the considerations in the US Bail Reform Act, reserving comment on Article 21 (paras 8-9).