The Criminal Procedure Code (CPC), 1973 does not define bail or the amount of security that is required to be paid by the accused for assuring his release. Therefore, the payment for the bail is the matter of the discretion of the court. But it is generally seen that the courts in India are not sensitive towards criminals with petty offences and poor households, as the courts demand an amount that is unfair for bail. Their economic situation is not taken into consideration.

As per the 78th report of the Law Commission, nearly 55% of the prison population is under-trials, the reason for such a massive number of people behind bars is that they are poor and unable to pay the amount that is demanded from them.

Article 21 of the Indian Constitution provides us with the authority to liberty and life. Such right guarantees each and everyone in the territory of India, life with all the freedom to enjoy one’s liberty and life. But, the right to refusal for bail or demanding the amount that an individual cannot pay is known as an infringement of article 21 of the Constitution of India.

Personal liberty is deprived when bail is not granted, is too precious a value of the constitutional system, that the necessary power to contradict it is a great trust exercisable not casually but judicially with lively concern for the cost to the individual and the community. The constitutional emphasis was made evident in Balchand (1977): “The basic rule may perhaps be tersely put as bail, not jail”.

From this, three things are clear: (i) Bail is a fundamental right (ii) The norm is bail and not jail (iii) Strong reasons, with full written explanation must exist for refusing bail. By following these conditions, it can be said that if an individual is refused the right to bail due to any reason, it is the infringement of his right to life and liberty.

A right to bail was not mentioned as a right in the constitution of India. Still, it is entirely implicit that it has been devolved as a right under Article 21 as a component of personal liberty. But, the system of bail in India is a property-oriented approach, and it is erroneous on the part of anyone to think that if one has money, he can flee from the justice system. Thus, the focus of judicial discretion in bail should always be upon the aspects of personal liberty and equality of the person provided under Articles 14,19 and 21 of the Constitution of India.