IMAGINE a person, X, has been arrested and formally charged with a crime. Soon enough, they will be presented before a court of law, and then, the judge presiding over their case shall have to answer a fundamental question — whether to release the person on bail, thereby restoring their liberty, or whether to keep them detained till the conclusion (or a portion) of their trial.

This is an intricate, highly sensitive task, for it involves counterbalancing a number of contradictory principles, each critical in its own respect. First and foremost, X has the right to be presumed innocent until their guilt is established beyond reasonable doubt in a fair and expeditious trial. As part and parcel of this presumption, it becomes unjust for the law to deprive them of their freedom unless they have been convicted, and ultimately, sentenced, for if they are indeed blameless of the crime, their detainment is tantamount to punishment itself.

However, just as the law must deem that X is innocent, it must simultaneously keep its mind open to the possibility that they may actually be guilty, in which case they may skip town or flee the country, or destroy or invent or tamper with evidence, or even intimidate or outright kill witnesses (all shockingly common occurrences in our country). And so, X’s individual right to liberty must be carefully weighed against a collective interest — the proper administration of the criminal justice system, which in turn necessitates that X dutifully appear before the court whenever summoned.

Our bail regime is antiquated, anti-poor and built on questionable foundations.

As the law stands, judges enjoy a considerable degree of latitude in granting bail (and even exercise it, to be fair); however, this grant is always subject to a central condition — the execution of a ‘bond’, one by the accused and the other by a third party that acts as a ‘surety’ on their behalf, and basically takes charge of producing the person before court. These bonds are essentially monetary undertakings, whereby both pledge to pay a certain sum of money in case the accused fails to attend their hearings as directed. Upon default, the amount stands forfeited and may be forcibly recovered.

The result is quite simple — if X has the financial capacity to execute such bonds, plus the social clout to procure a surety who can do the same, they will be bailed out. If not, well, tough luck.

Herein lies the issue: this system is brazenly classist. As soon as the ability of a defendant to secure their release is made subject to a material determinant (like the execution of a bond), or even a cultural determinant (like the ability to procure a third-party surety), we end up with a mechanism that inevitably favours the deep-pocketed. They tap into their connections and capital, furnish bonds and sureties to the court’s contentment, and are quickly free to do as they please, while the poor, unable to avail even a sliver of this privilege, are forced to spend months if not years in prison. They may have been accused of exactly the same crimes, but due to the simple difference in their social standing, one rots in an overstuffed cell and suffers endlessly, day in and day out, while the other just walks free. This is not justice, it’s open mockery.

Our bail regime is antiquated, anti-poor and built on questionable foundations to begin with. Although the practice of releasing suspects on bonds and sureties can be traced back to ancient times, our modern conception of the law mirrors that of 19th-century England. Even then, critics railed against its discriminatory nature, in addition to questioning its counterintuitive wisdom, for rather than the poor, it is most often the rich who are most at risk of absconding, given that they have the wherewithal to actually do so, whereas the poor usually lack, to borrow the words of one jurist, “the golden wings with which to fly from justice”.

The Brits eventually sobered up and recognised this inequity. These days, monetary guarantees play a very minor role in their procedural code. Canada and New Zealand have adopted a similar attitude. And of course, in jurisdictions not anchored in the English legal tradition, like many countries in continental Europe for instance, the practice is virtually non-existent.

Wherever it continues to persist though, it has visibly perverted justice. In parts of the United States (and in Philippines, its erstwhile colony), the money bail system has spawned an entire industry, complete with commercial bond agents and bounty hunters. Across South Asia, it has led to the widespread demand and supply of what we call ‘tout machalkas’ — dubious bonds based on fake or otherwise invalid documents.

Today, thousands of defendants are languishing in our prisons solely because they cannot afford to execute bonds or furnish the sureties demanded of them. Their ‘presumption of innocence’ is but a mirage. Not only must they bear the physical and psychological torture of confinement, they often end up losing their jobs and are effectively deprived of the ability to actively participate in the preparation of their defence. The hardest hit are always the most marginalised — the very poor, the homeless and the kinless, transgendered and intersex communities, linguistic and ethnic minorities, refugees and the like.

Laws that penalise and compound poverty must be dismantled. At its core, bail is an assessment about the trustworthiness of a suspect. Money deserves no place in this equation, for when justice begins to bow before the feet of the wealthy, it pretty much renders itself unworthy of its own name.

Postscript: Anyone interested in understanding the brutal manifestations of the present system need only visit their local bakhshi khana. There, amidst tired smiles and bawdy jokes, they will find stories of untold neglect and anguish — like that of a young man, who, despite having been bailed out (nearly a year ago) by one of the top human rights organisations in the country, is still behind bars. His family cannot afford to stand as sureties. He is in jail, not because he is guilty, or dangerous, or at risk of flight. He is there simply because is poor.

The writer is a barrister.

Published in Dawn, May 27th, 2021