Fear and loathing in lower courts: The bail edition

Jaipur, Rajasthan: On several occasions, the former Chief Justice of India (CJI) DY Chandrachud has raised the issue of lower courts not granting bail to undertrial prisoners in time. As a result, those eligible for bail from lower courts have to approach the High Court, while those not granted bail there have to move the Supreme Court.

101Reporters spoke to Surendra Mohan Sharma, a retired District and Sessions Judge from Rajasthan, to learn why judges of subordinate courts are hesitant in granting bail. Sharma started his career as a lawyer in Hanumangarh. In 2001, he became an Additional District and Sessions Judge in the Rajasthan Higher Judicial Service. His first posting was in Bhilwara, followed by postings as an Additional District Judge in Sriganganagar, Sojat and Bikaner. 

He was promoted as a District and Sessions Judge in 2005, and was posted in Merta City, Karauli, Jaipur City, Jaipur Rural and Bharatpur. Sharma retired from Bharatpur in October 2018.

Agreeing with the former CJI’s view on bail rejection by lower courts, Sharma said that judges in lower courts are troubled by an “unknown fear”. “They are apprehensive that if they provide bail, someone might accuse them of taking money or criticise them over some other issue. Nowadays, people keep complaining, so judges get notices from High Court (HC). Fearing this, they walk on the safe side and consider it appropriate to reject the bail. Ideally, what should happen is that the judge should give orders fearlessly, but they are bound by the social environment,” he explained. 

Mangla Verma, a human rights lawyer and legal research expert, concurred. “Lower court judges often operate with significant fear and risk-aversion, worried that granting bail may expose them to allegations of corruption or being seen as soft on crime.” 

She highlighted that media scrutiny in sensitive cases further heightens this anxiety. As a result, many judges choose the safer option of rejecting bail, assuming higher courts can correct the decision. “Nowadays, the media runs parallel investigations. Judges feel that courts will be dragged into unnecessary things,” Sharma echoed.

Compounding this, police routinely oppose bail, and judges’ dependence on case diaries and police views leads to frequent, almost automatic, bail denials at the lower courts. “Police too frequently claim that granting bail will hinder the investigation, prompting judges to err on the side of caution. Heavy administrative burdens and staffing shortages add to this hesitation. With too few judges handling an overwhelming number of cases, making swift bail decisions can feel risky, and postponing or denying bail becomes the easier path,” said Verma.

When it comes to data on how many bail applications are accepted or rejected in lower courts across different states, Verma said that the district-wise data collected by the National Judicial Data Grid (NJDG) haven’t been analysed much, but observations show no significant difference between the number of grants vs. rejections. This serves to highlight the fact that the directive on bail as a rule is often ignored. The data also says that over 2,62,000 bail applications are pending in district courts across India.

Better infrastructure and processes

Section 479 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, allows courts to grant bail to first-time offenders who have served detention for a period extending up to one-third of the maximum period of imprisonment specified for that offence under that law. On this, Sharma said, “There is already a ruling of the Supreme Court that if someone has been in custody for one-third or half of the sentence, then he should be granted bail. Based on this order, at one time, so many bails were granted in many places that the jails started becoming empty.  Now it has been added as a section in the Act."

"During my posting in Bharatpur and Karauli districts, I myself went to the jails there, took information and got many people who were imprisoned for a long time in petty cases out on personal bonds,” he added.   

Not getting bail is not the only reason behind overcrowding in jails. There is a lack of infrastructure. Governments do not give proper budgets, and there is no expected improvement in jails. It has been so many years since these jails were built. 

“Just look at the Jaipur Central Jail. It was built during the time of the princely state and remains in the same condition to date. Not even four rooms were added to the building afterwards. Our jails have low capacity, but crimes have increased and hence the number of jail inmates.”

“Not just that, even the number of judges is less compared to the population. Rajasthan HC has 50 judge postings, but the actual numbers never cross 35. The condition of the lower courts is even worse. The numbers are satisfactory only in a few districts. Moreover, there is a lack of infrastructure in all district courts. The governments do not have a budget for this. However, there is a proper infrastructure in the neighbouring states of Punjab and Haryana,” Sharma explained. 

Apart from structural improvements in the lower courts, another solution to this crisis is to treat remand proceedings as the first and fundamental filter to incarceration, according to Verma. “Magistrates should start putting real thought at the remand stage itself into whether this person should be arrested or not in the first place.” She argued that remand hearings are the place where many unnecessary arrests and long detentions are created. 

Strengthening judicial scrutiny at remand, enforcing Arnesh Kumar Judgement which laid down guidelines on Section 41A of the erstwhile Code of Criminal Procedure (CrPC) inquiries and requiring policing to justify arrests would reduce needless custody and downstream bail pressure, she emphasised.

Acting with empathy instead of fear

According to Sharma, lower courts should understand that bail is a rule and jail is an exception because the SC has been repeatedly saying this. At the same time, the HCs in respective states should tell the lower courts to work fearlessly. “The HCs should assure the lower courts that they will help out if false complaints come up, or inform them that the false complaints against lower court judges will be ignored. If the HCs provide such protection, lower courts will become fearless,” he suggested. 

“The Supreme Court has also warned many times against the tendency of calling the judges of the district courts to the HC when complaints come up before it. This practice is against the Judicial Officers Protection Act,” Sharma noted. 

Asked about how he treated bail applications while in service, Sharma claimed that he had been fearlessly granting bail. “Although people have made complaints against me, I have given relief that one deserves while adopting a humane and sensitive approach. Wherever I have been posted, the accused did not have to go to the HC,” he said emphatically. 

While refusing to divulge the incidents where complaints were raised against him, Sharma said, “I cannot tell you about any particular case, but there are around four such cases in which people complained. This happens with every judge.”

Sharma’s reflections point to a deeper malaise in India’s criminal justice system — one where fear, public perception, and institutional inertia often override judicial discretion. As lakhs of undertrials languish in overcrowded prisons for want of timely bail, the principle that “bail is the rule and jail the exception” remains more aspirational than real. Bridging this gap will require not just legal reform but also cultural change within the judiciary — one that empowers judges at the lowest levels to act without fear, backed by structural support from higher courts and governments alike. Only then can India begin to address the chronic injustice of pretrial incarceration that continues to erode faith in its justice system.

(Amarpal Singh Verma is a Rajasthan-based freelance journalist and a member of 101Reporters.) 

This story has been produced by 101Reporters, an independent news agency with a network of 3,000+ freelance journalists across the country, in collaboration with Crime & Punishment, Vidhi Centre for Legal Policy.