A 24 year old male is arrested on the charges of taking part in a fight in his locality. No arms recovered. No grievous hurt to the complainant. Yet the accused is slapped with an FIR with sections which are non-bailable and brought before the Magistrate the following morning. The prosecutor repeats a sentence that appears to hold absolute import: “Your Honour, due to the seriousness of the offence, we are opposed to bail.” The judge concurs and the bail is thus refused. The suspect is remanded to judicial custody, where he will spend the next eight months, not that he’s guilty, not that he’s likely to flee, but because someone thought his alleged crime was “serious.” That is what’s wrong with the present judicial scenario. This is something that happens on a daily basis in India.

What’s profoundly distressing is that “gravity of offence” is no statutory basis on which to refuse bail, not in the repealed Code of Criminal Procedure, 1973 (CrPC), and also not in the Bharatiya Nagarik Suraksha Sanhita, (BNSS). And yet courts habitually make use of it, punishing accused persons before they are convicted. Such practice violates Articles 14 and 21 of the Constitution and undermines the rule of law. In BNSS Clause 479 (equivalent to Section 437 CrPC), a magistrate can refuse bail in cases of non-bailable crimes if there are good reasons to believe that the accused will flee, destroy evidence, or repeat offenses. Clause 481 (previously Section 439 CrPC) authorizes Sessions and High Courts to exercise more discretion, yet once again subject to defined parameters. Clause 187(3) provides default bail in case of failure to investigate in a timely manner. None of these provisions permit denial of bail on the basis of how grave an offence sounds. However, judicial officers make severity of offence a de facto trump card, frequently to displace the presumption of innocence. In this way, severity........

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