Price of freedom: How bail decisions impact human rights

Bail hearing is the crux of the criminal justice system. It plays a crucial role in a fair legal system. When someone is arrested, the court must decide whether they should stay in jail or be granted bail based on conclusive evidence. This evidence typically includes the First Information Report (FIR), statements from victims and witnesses, evidence gathered from the crime scene, the statement of the offender, medical reports, and more. The goal is to determine whether the accused should remain in custody before their trial or be allowed to go free.

At a bail hearing, the key question is whether there is enough evidence to justify pre-trial detention. This decision should not be influenced by the strength of the case or a final judgment of guilt but by concerns such as the risk of flight, the possibility of evidence tampering, or the threat to public safety. Courts usually rely on prima facie evidence, meaning evidence that appears to support the charges at first glance but is not conclusive.

Many countries make clear distinctions between bailable and non-bailable offenses. However, in Nepal, the legal system does not differentiate in this way. This gives judges significant discretion in deciding bail. While judicial discretion is important, it has led to a troubling trend in Nepal where courts often deny bail even when the evidence is weak. This is especially true in cases involving serious charges like rape, murder, human trafficking, or drug trafficking, where the accused is frequently sent to judicial custody, not because of solid evidence, but because of the severity of the charges pressed.

The fundamental principle of criminal justice is that a person should be presumed innocent until proven guilty. Unfortunately, in Nepal, the opposite often happens: an accused person is treated as a criminal before their innocence is proven. This goes against the very foundation of a fair justice system. Merely accusing someone does not make them a criminal; they remain an accused person until proven guilty. Yet, in many cases, the presumption of innocence is ignored when bail is denied, violating this fundamental right and often leading to significant harm before a trial.

The Supreme Court of Nepal has set a clear precedent, stating that bail should still be granted if the accused is not a significant flight risk, does not pose a danger to public safety, and there is no compelling evidence justifying detention. However, district courts often fail to follow this precedent. The reasons for this include pressure from media trials, societal expectations, influence from NGOs, and even fear of repercussions from the Judicial Council. This malpractice can have a severe impact on the human rights of the accused, particularly their right to freedom, the presumption of innocence, and the right to a fair trial.

Article 20 of the Nepali Constitution guarantees the right to justice, including the presumption of innocence and the right to a fair trial. Denying bail without strong evidence directly violates these rights. The practice undermines both the legal process and the fundamental freedoms of individuals. Bail is a fundamental right, not a privilege, and should only be denied in cases where there are clear reasons for detention, such as a flight risk or a threat to public safety. This principle is also backed by international human rights standards, including the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), both of which affirm the presumption of innocence and stress that pre-trial detention should be a last resort.

Despite these legal protections, Nepal’s criminal justice system faces serious challenges such as overcrowded prisons, delayed trials, and excessive pre-trial detention. These problems often result in individuals being detained unnecessarily, violating the principle of “innocent until proven guilty.” When bail is denied based on weak evidence, it treats the accused as if they are already guilty, taking away their freedom and causing harm even before a verdict is reached. The impact of this is far-reaching: individuals may lose their jobs, face social stigma, and endure emotional trauma all before their guilt or innocence is decided in court.

Challenges to justice

One of the significant challenges in the bail process is the role of prosecutors. Often, prosecutors bring serious charges based on limited or weak evidence, which can unduly influence bail decisions. Serious charges like murder, rape, or terrorism may automatically lead to bail denial, even when there is little evidence to support them. When prosecutors file charges with the intention of securing a conviction rather than based on solid evidence the courts are often pressured into denying bail without adequate justification.

For example, a prosecutor files a case involving a simple fight between two or more people, where the injury is minor, and there is no intent to kill anyone. However, the prosecutor still charges the offender with attempted murder, leading the judges to reconsider granting bail. Similarly, in drug-related cases, even when a person is merely a user and not a dealer, they may be charged with trafficking, a far more serious offense. This escalates the severity of the crime without a clear basis in fact.

Additionally, a growing trend has emerged in Nepal where, if more than three people are involved in a crime, the prosecutor charges them with organized crime even if the crime does not meet the legal definition of organized crime. This is often done without evidence of a criminal hierarchy or any clear leader. By inflating the seriousness of the crime, the prosecutor may pressure the court into denying bail, further violating the human rights of the accused.

The price of freedom

Denying bail based on the severity of charges alone, without solid evidence, inflicts significant harm on the accused. This practice not only violates basic human rights but also contradicts international legal standards, which state that pre-trial detention should be used as a last resort.

To address these issues, Nepal’s criminal justice system must undergo significant reforms. Courts must base bail decisions on clear and convincing evidence, not just the severity of charges. Judges should follow strict guidelines to ensure bail is not used as a tool of punishment before a trial. There is a saying “Whether criticized or praised, whether money comes or goes, whether one dies today or in the distant future, without worrying about any of these things, those who walk the path of justice never waver.” For this kind of fair judgement, a judge must be provided with a conducive working environment, where there is no fear from society, media trials or NGOs. Only then can they truly deliver justice. Only then can they secure the human rights of the accused in the true sense.

Real justice comes from a system that respects human dignity, ensures a fair trial, and upholds the principle that everyone is innocent until proven guilty. Only when these principles are upheld can Nepal’s criminal justice system be truly fair. The price of freedom should not be determined by the whims of prosecutors or the severity of the charges alone. It should be based on the facts and the evidence. The time to act is now, before more innocent people are unjustly punished by a broken system that is meant to protect them.