Mishel Hasan: Picture a man arrested on a Monday over a land dispute with his neighbor. No court has tried him and no judge has found him guilty. Yet he spends weeks in a crowded cell, while his family sells what little they own to pay a lawyer. His children miss schooland his employer replaces him. In Bangladesh, this story is not rare. It raises a simple question that every citizen should ask: is bail a right that the law gives us or a favour that a court may grant or refuse?
The law’s own answer is mixed. Our Code of Criminal Procedure divides offences into two broad groups. For bailable offences, which are the less serious ones, bail is a matter of right. If the accused is ready to provide bail, they must be released and neither the police nor the court has any choice in the matter. For non-bailable offences, which are more serious, the court has discretion. Bail should be refused where there are reasonable grounds to believe the accused is guilty of an offence punishable with death or life imprisonment. Even then, the law shows some kindness to women, children and people who are sick or weak. The High Court Division and the Sessions Court also hold wider powers to grant bail in suitable cases. Behind all of this stands our Constitution, which protects personal liberty and sets basic safeguards for a person who is arrested, including the right to be brought before a magistrate within twenty-four hours and the right to consult a lawyer. On paper, then, the law leans towards freedom. Bail is a right for lesser offences and a careful exception for the gravest.
In practice, the picture looks different. Discretion is meant to bring fairness, but it often brings uncertainty. Two people accused of similar offences may receive very different outcomes, and no one can easily explain why. Money plays a part too. A person with a skilled lawyer, a reliable guarantor and some influence has a far better chance than a day labourer with none of these. Even when bail is granted, the amount of the bond or the need for a surety can be too heavy for a poor family, so the order exists on paper while the person stays inside. Cases are also sometimes filed against long lists of accused, many of whom had little or nothing to do with the incident. All of them must then fight for bail, one after another and each fight costs time and money.
Then comes the delay. Our courts carry a huge backlog and a person waiting for trial may wait for years. By the time a verdict arrives, the accused may already have spent more time in jail than the law would ever have asked them to serve. Our prisons, meanwhile, hold far more people than they were built for, and a large share of those inside have not been convicted of anything. Overcrowding brings poor health, poor food and little privacy and it hurts people who may later be found innocent. When waiting itself becomes a punishment, the presumption of innocence turns into a phrase that sounds good but means little.
The harm does not stop with the individual. When the breadwinner is jailed, the whole family pays. Children may leave school, wives and parents may fall into debt and a household that was once stable can slide into poverty. A person who spends months in jail without a verdict may also come out with a damaged name and a lost job, even if the court later sets them free. A system that causes this much harm before it has proved anything must be very careful about when it takes away someone’s liberty.
None of this means bail should be handed out without thinking. Society also has a right to be safe. Some accused people may run away, threaten witnesses or commit the same crime again, and courts must guard against these risks. A person accused of a violent crime or one who has shown a clear pattern of misusing freedom, should not be released lightly. But the answer to risk is not always a prison cell. Courts can set conditions instead: regular reporting to the local police station, a ban on travelling abroad, or a promise to appear on every hearing date. For minor offences and for poor accused persons, a simple personal bond can be enough, without the heavy burden of money or sureties.
Reform does not have to be complicated. Judges could be asked to give short written reasons whenever they refuse bail, so that the decision is open to scrutiny and not left to guesswork. Free legal help at the very first hearing would help people who cannot afford a lawyer at the moment they need one most. Courts could also review, at regular intervals, the cases of people who have been held for a long time without trial. Police and prosecutors, for their part, should avoid naming people in a case simply because they are related to or live near the main accused. Each of these steps is small. Together, they would make bail fairer, faster and more predictable.
So, is bail a right or a privilege? Perhaps the best answer is that it should be neither a gift nor an automatic entitlement but the normal rule. Detention before trial should be the exception, used only when there is a real and proven need. A justice system shows its true character not in how it treats the guilty but in how it treats those who are still presumed innocent. Until every accused person, rich or poor, can expect fair and equal treatment on bail, the promise of liberty will remain unfinished.
