A Bail is a judicial process that must be conducted impartially, judicially, and by statutory and constitutional prescripts. Bail is a right to liberty in criminal jurisprudence. It reflects the right of every person to liberty. Bail is also a fundamental right under Article 19 and Article 21 of the Indian Constitution bail refers to release from custody, whether the accused person is on personal bond or with sureties. The court has also held that the right to bail is a fundamental right under Article 21 of the Constitution. Article 21 plays a significant role in bail in the following ways: It ensures that an accused person is not deprived of their personal liberty unless there is a compelling reason to do so.

Bail is a right to liberty in criminal jurisprudence. It reflects the right of every person to liberty. Bail is also a fundamental right under Article 19 and Article 21 of the Indian Constitution bail refers to release from custody, whether the accused person is on personal bond or with sureties.

Introduction
This research on the topic of Right to bail as a constitutional right attempts to investigate the varied aspect of the concept of bail-by the courts the rights must be respected and as a matter of concession left to the judicial discretion of the courts. The right to bail is inextricably connected to the information and awareness of the accused of his right to obtain liberate on bail. Article 22(1) of the constitution says that no person who is not under arrest shall be denied the right to be seeks advice from and to be protected by legal practitioner of his/her choice. The concept of bail implies a type of previous restraint .The word BAIL means to free a person by taking security for his appearance who is under arrest, or under some kind of restraint.

According to Article 22 of the Constitution of India, No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice.

Bail Provisions under the Indian Law:

• Bail is the temporary release of the accused in a criminal case in which the court has a trial pending and is yet to announce the judgment.
• Bail is granted to the convicted person after submitting a personal bond or assurance to follow the conditions imposed by the court.
• A person can apply for bail at the moment he/she is arrested.
• The accused can get bail for a non-bailable offence.
• Bail can be obtained from the Sessions Court or High Court, depending upon the seriousness of the offence the accused is charged with and the discretion of the court.
• For a bailable offence: A person doesn't need to go to court, as it is given by the Police Officer.

The Legal Position in India:

There is no definition of Bail in the code of criminal procedure ,1973 although the terms bailable and non bailable is define under section- 2(a) of the code of criminal procedure ,1973.
Bailable offences are those which are mention in first schedule and which is bailable in any other law and non- bailable offences means any other offences.

• Section 436 and Section 450 laid down the provision for the grant of bail and bonds in criminal cases.
• In the Criminal Procedure Code, the amount of security which is paid by the accused to secure his release is mentioned. The court has the discretion to put a monetary cap on the bond.
• According to the 78th report of the Law Commission, as on April 1, 1977, out of a total prison population of 1,84,164, as many as 1,01,083 (roughly 55%) were under trial.
• One of the reasons for this is the large-scale poverty amongst the majority of the population in India.
• This is the precise reason why most under-trial prisoners languish in jail instead of being out on bail.

Why Bail

Before actually determining the place of bail within human rights framework as conferred by the Constitution, it is important to examine the object and meaning of bail, such that an analysis of these fundamental objects and change therein may reveal a change. The object detention of an accused person is primarily to secure her/his appearance at the time of trial and is available to receive sentence, in case found guilty. If his/her presence at the trial could be reasonably ensured other than by his arrest or detention, it would be unjust and unfair to deprive the accused of his liberty during pendency of criminal proceedings.

Thus it is important to note the relevant provisions enshrined in the Universal Declaration of Human Rights:

• Article 9 - No one shall be subjected to arbitrary arrest, detention or exile.
• Article 10 - Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
• Article 11(1) - Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

There are thus several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial detention.

• Article 21 of the Constitution of India guarantees the right to life and personal liberty to all persons, including those accused of crimes. This right is not absolute, but it can only be restricted by a procedure established by law.
• The right to bail is an important aspect of the right to personal liberty. Bail is the granting of temporary freedom to an accused person before their trial, on condition that they appear in court when required.
• The Supreme Court of India has held that bail is the rule and jail is the exception. This means that an accused person is entitled to bail unless there are strong reasons to deny it. The court has also held that the right to bail is a fundamental right under Article 21 of the Constitution.

Article 21 plays a significant role in bail in the following ways:

• It ensures that an accused person is not deprived of their personal liberty unless there is a compelling reason to do so.
• It prevents the misuse of pre-trial detention, which can have serious consequences for the accused person and their family.
• It ensures that the accused person has a fair opportunity to prepare their defense for trial.
• It upholds the principle of the presumption of innocence, which is a fundamental principle of criminal justice.

The Supreme Court has laid down a number of factors that courts must consider when deciding whether to grant bail.

These factors include:

• The nature and gravity of the offense.
• The strength of the evidence against the accused person.
• The accused person's flight risk.
• The accused person's risk of interfering with witnesses or evidence.
• The accused person's criminal history.
• The accused person's health and other personal circumstances.

The court must weigh all of these factors before deciding whether to grant bail. If the court is satisfied that the accused person is not a flight risk or a risk to witnesses or evidence, and that they will appear in court when required, then the court should grant bail.Article 21 plays a vital role in ensuring that the right to bail is protected and that accused persons are not deprived of their personal liberty without good reason
With the incorporation of section 167(2) Cr.P.C. the investigating agency is required to complete the job of investigation and file the charge-sheet within the time limit of either 60 or 90 days as the case may be. In case the above is not completed within the definite period a most valuable right accrues to the accused. The accused is, in that eventuality, entitled to be released on bail.

Right To Bail (Section 167(2) Cr.P.C) And Delay In Investigation

It would be seen that the whole object of providing for a prescribed time limit under section 167(2) Cr.P.C. to the investigation agency to complete the investigation was that the accused should receive expeditions treatments at the hands of the criminal justice system, as it is implicit in Article 21 that every accused has right to an expeditions disposable of his case. Section 167 has been criticized[1] with respect to the fact that the prescribed time limit relates only to the investigation aspect and does not touch other segments of the criminal-justice-system, thus the object (of speedy trial), behind section 167 stands frustrated.

Moreover section 167(2) is seen to paradoxically serve as a way of grant of liberty to some dangerous criminals who would otherwise not be able to get it under our system (for example they may not be otherwise entitled to bail by virtue of nature and gravity of offence.) thus the utility of section 167 Cr.P.C. may be thus questioned in the light of above, as to whether it really serves the purpose enshrined in Article 21 of the Constitution, particularly in the light of viewing the criminal justice system as whole not confined solely to investigation- it therefore follows that to achieve the right to speedy trial (as enshrined in section 163(2) Cr.P.C.) it is important to overhaul the system in its entirety and not parts of the system in isolation.

Right To Bail And Article 21's Right To Personal Liberty

A key component of the accusatorial system is the right to bail, which supports a system that often allows a person to remain out of jail until a trial has determined that person to be guilty. In India, women and children are the only ones who can be granted bail in cases when the offence carries a death or life sentence; in other cases, bail is only possible for offenses that are not punishable by death or life imprisonment.

The distinction between crimes that are bailable and non-bailable is eliminated to the point where the police's right to oppose bail, the lack of legal aid for the impoverished, and the need for prompt justice inevitably result in the impoverished being detained for an extended period of time while the police conduct their investigation and prepare for trial by a court.

Constitutional Provision Relating To Right To Bail In India:
The preamble of the constitutional of India secure to all its citizens justice, liberty, equality and fraternity assuring the dignity of the individual and the unity and integrity of the Nation. Article 21 of the Indian Constitution says, 'No person shall be deprived of his life or personal liberty except according to procedure established by law". The words 'personal liberty" under article 21 of the Indian Constitution can be interpreted widely or broadly with a view to attract the rights mentioned in the article 19 of the constitution.

Article 15(3) and Right to Bail when accused is minor woman, sick and infirm:
Article 15 (3) of the constitutional of India recognizes and guarantees some special provisions for women and children apart from the fact that it prohibits any discrimination on the grounds of religion, race, caste, sex of place of birth.

Article 22 and Safeguards against Arbitrary arrest aand Detention:
Article 21 of the constitution says 'No person can be deprived of his life or personal liberty except according to procedure established by law. Article 22 provides those procedural requirements, which must be adopted and included in any procedure requirements, which must be adopted and included in any procedure enacted by the legislature in accordance with which a person may be deprived of his life, and personal liberty. Article 22 provides two separate matters.

1. Persons arrested under the ordinary law of crimes, and
2. Persons detained under the law of preventive detention.

Accordingly, the following rights are to be taken into consideration with regard to the person arrested provided under Article 22 of the Constitution of India.

• Right to be informed of grounds of Arrest.
• Right to be defended by a lawyer of own choice.
• Right to be produced before a magistrate.
• No detention beyond 24 hours except by order of the magistrate.

Article 22 clauses (4) to (7) prescribed the procedure, which is to be followed if a person is arrested under the law of "Preventive Detention". Preventive detention laws are repugnant to democratic constitution and they are not found in any of the democratic countries of the world. No country in the world has made these laws an integral part of the constitution as has been done in India. There is no such law in the U.S.A. It was used in England only during wartime. The following are preventive detention acts passed in India:

• Preventive Detention Act, 1950.
• National Security Ordinance 1984 (NSA).
• Maintenance of Internal Security Act 1971 (MISA).
• Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).
• Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPSA).
• Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA).

Article 32, 226 and 227 and Provisions of Bail:

• Constitution of India and law of habeas corpus:
  The constitution of India contains provisions for the protection of individuals against arrest and detention Article 32 and 226 of the constitution confer powers on the Supreme Court and High Court respectively to issue directions or orders of writs, including writes in the nature of Habeas Corps, Mandamus, Prohibition, Qua-warranto and certiorari.
  
  
• Remand of Police Custody and Writ Jurisdiction under Art. 226 Of the Constitution:
  The accused had a constitutional right of being protected during investigation against being tortured and made to answer self incriminating questions. He has a right to satisfy the writ court of existence of positive circumstance pointing to imminent like-hood of his being tortured during investigation and of praying for appropriate direction to keep him out of Police Custody during such period.
  
  He has a right, in such circumstances, to pray to the writ court for a direction for allowing him assistance of a lawyer of his choice to such a direction was made, he shall till be bound to answer full other question conductive to effective and speedier investigation of the crime[2]

Right To Bail And Article 21's Right To Personal Liberty

The constitution of India is mother of Laws:

• Right To Bail And Article 21's Right To Personal LibertyArbitrary exercise of power creates perversity. It offends against the rule of law which is the main and important object of our constitution. To sum up, we can say that the absence of arbitrary power is the first essential of the rule of law upon which whole constitutional system is based. The refusal to grant bail affects the dignity of the individual which has been ensured by the Indian Constitution. The Courts will have to be very careful in granting bails to the accused keeping in view the dignity of the individual proclaimed in the preamble to the Constitution of India.

Judicial Trends
'An overview of the following cases highlights the adverse conditions of with regards to bail system in India. In the case state of Rajasthan v. Balchand 10the accused was convicted by the trial court. When he went on appeal the high court, It acquitted him. The state went on appeal to the Hon'ble Supreme court under Art. 136 of the constitution through a special leave petition. The accused was directed to surrender by the court. He then filed for bail. It was then for the first time that Justice Krishna Iyer raised his voice against thi s unfair system of bail administration.

He said that though while the system of pecuniary bail has a tradition behind it , a time for rethinking has come. It may well be that in most cases an undertaking would serve the purpose. In the case Maneka Gandhi v Union of India 11 Justice Iyer once again spoke against the unfair system of bail that as prevailing in India.No definition of bail has been given in the code, although the offences are classified as bailable and non-bailable. Further Justice P.N. Bhagwati also spoke about how unfair and discrimination the bail system is when looked at from the economic criteria of a person this discrimination arises even if the amount of bail fixed by the magistrate isn't high for some, but majority of those who are brought before the courts in criminal cases are so poor that they would find it difficult to furnish bail even if its small amount.

Conclusion
This paper has attempted to investigate the various aspect of right to bail within the constitutional framework. It is a prime implication to note that the concept of bail arises from an assumption, of the accusatorial system, of ''innocent till proven guilty''.

As such individual personal liberty which is of fundamental rights under article 21 of the constitution cannot be concession until he or she is convicted and thus proven responsible. Law and life must derive strength from each other and then alone the rule of law will give relevance and meaning to those who suffer from abuse of power and escalating crime, which affects considerable number of the weaker sector of humanity i.e., the suspects, accused or prisoners, who are at the mercy of law and order. The state has sovereign obligation to develop a dynamic system of law. For that the rule of law must run close to the rule of life.

References

1. Jagdeep Dhankhar, "The Right to Bail and Delay in Investigation", Article published on www.LegalserviceIndia.com
2. Munna Singh Vs. State of M.P. 1989 CrLJ 580 (DB)
3. Vidhan Maheshwari, RIGHT TO BAIL AS A CONSTITUTIONAL RIGHT, National Law Institute University, Bhopal, http://www.goforthelaw.com/articles/fromlawstu/article10.htm
4. P. V. Ramakrishna, "Law of Bails", Seventh Edn., Lexis Nexis, New Delhi.
5. Madhu Rani and Dr. Rana Parveen, Right to Bail as a Constitutional Right, International Journal of Law Management and Humanities, Volume 5, Issue 5, Page 352 – 361, DOI: https://doij.org/10.10000/IJLMH.113577
6. https://www.iasgyan.in/daily-current-affairs/bail-provisions-in-India

End-Notes:

1. Jagdeep Dhankhar, "The Right to Bail and Delay in Investigation", Article published on www.LegalserviceIndia.com
2. Munna Singh Vs. State of M.P. 1989 CrLJ 580 (DB)

Written By: Dr.Karna Singh. Sambalpur University
Email: karan4u358@gmail.com