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Cashless Bail in India: A Transformative Lesson for Justice Reform
Cashless Bail in India: A Powerful Step Toward Fair Justice
Context: Donald Trump’s tariff escalations are highly relevant today as global trade tensions intensify, with the U.S. adopting aggressive protectionist measures. These policies not only reshape U.S.–China economic rivalry but also impact global supply chains, inflation, and India’s trade and diplomatic strategies in a shifting world order.
What is a cashless bail?
How is it different from the bail system in India?
India’s bail process is governed by the Bhartiya Nagarik Suraksha Sanhita, 2023 (replacing the Code of Criminal Procedure, 1973). Bail conditions generally involve:
- Bond: Accused signs an undertaking and often deposits cash, forfeitable if terms are violated.
- Bail Bond: A surety (family/friends/employer) provides financial backing. In Mumbai, a solvency certificate from revenue authorities is required.
- Personal Recognisance (PR) Bond: In theory, allows release without immediate cash, but courts rarely grant it.
Unlike US reforms, Indian bail remains heavily financially contingent. The result is a two-tiered justice system—wealthier accused secure release easily, while poorer undertrials languish in jail.
- Cashless bail, also known as non-monetary bail or bail reform, refers to releasing an accused without demanding a cash deposit. Instead of ability to pay, the court assesses flight risk, threat to society, and likelihood of appearing for trial.
- This system emerged in the US after glaring inequities of the money-bail system.
- A notable case is Kalief Browder (2010–2015), a teenager who spent three years in jail, including over 700 days in solitary confinement, because his family could not pay a $3,000 bail. His eventual suicide became a catalyst for bail reform.
- Several US jurisdictions like Washington D.C. (since 1992), New Jersey (2017), and Illinois (2023) have abolished cash bail, relying instead on judicial risk assessments.
- Research by the Brennan Center for Justice found no significant correlation between bail reform and increase in crime rates, countering political fears.
Why is there a need for a change in the bail system in India?
- India faces a chronic problem of undertrial prisoners. As per the National Crime Records Bureau (NCRB) 2021, nearly 77% of India’s prison population are undertrials. Many remain in custody for inability to pay even small bail amounts (sometimes as low as ₹5,000).
- The Law Commission’s 268th Report (2017) termed monetary surety “contrary to constitutional ethos” and violative of the right to equality. The Supreme Court (2023, Kaul & Oka Bench) directed that if bail is granted but not executed within a week due to financial inability, prison authorities must inform the District Legal Services Authority (DLSA) to provide assistance.
- This highlights the urgent need for India to shift towards risk-based assessment models, ensuring liberty is not hostage to wealth.
- The Economic Survey 2018–19 also underlined that judicial reforms, including bail reform, are central to improving India’s Ease of Doing Business and social justice outcomes.
Why is cashless bail controversial in the US but relevant for India?
- In the US, critics argue that cashless bail enables repeat offenders to be released quickly. Former President Trump has linked it to rising crime, though studies (e.g., Brennan Centre, Loyola University Chicago) show little evidence.
- For India, however, the issue is less about crime control and more about equity and constitutional morality. With overcrowded prisons (occupancy rate 118% in 2021, NCRB) and high economic disparity, reforms similar to cashless bail could reduce undertrial incarceration, uphold Article 21 (Right to Life and Liberty), and bring justice closer to its true meaning.
