Health as a Ground for Bail: Covid Angle

It is a well settled law that an accused is innocent until proven guilty. Keeping this in mind the concept “bail” was called upon to protect the right to life and personal liberty. Though this right to life is not an absolute one. It is also a well settled principle which states that jail is an exception and bail is a rule[1]. There are two types of offence prescribed in CrPC that is bailable and non bailable offence. In bailable cases bail is a matter of right. Section 436 of Cr.PC is an obligatory provision and the court or the police has no discretion in the matter.

In these unexpected times, health is of utmost concern of every citizen. Thereby the million-dollar question is what are the grounds of bail? Is health a ground for bail?In order to answer these questions, it becomes necessary to understand what is the interpretation of court regarding the intent of bail as a concept. Before answering the aforementioned question, it becomes necessary to question that why is bail even necessary and what is the pertinence of bail.

Article 9 (3) International Covenant on Civil and Political Rights, 1966, states that detention is not at all necessary if it is evident from the fact that the accused will appear whenever called for appearance in a trial. The UN group of arbitrary detention observed that indigent and socially vulnerable groups of population are disproportionally affected where bail is discretionary. [2]

The discretion of not to give bail can make an arrest unlawful and contrary to the principle which says a person is innocent until proven guilty.

Health as a fundamental right

Health as a fundamental right is not explicitly stated but the courts under various judgement postulated health as fundamental right. Right to health comes under the ambit of right to life under article 21 of the constitution.[3] In a leading case it was held that the state has the obligation to preserve health and life, it does not matter if the person is innocent or criminally liable by law.[4]

Health is an exception to even those offences where bail is barred i.e. in offence punishable with death and imprisonment for life. As section 437(1) states that the court may direct  that any person under the age of 16  years or any woman , or any sickness or infirm person to be released on bail.

Granting interim bail to under trial prioners in view of covid 19

Recently undertrial prisoners were released on interim bail by taking in view of the existing unprecedented conditions. The researcher feels that in order to protect the health of the citizen which is not only a human right but also a fundamental right must be granted bail.

In a case the court laid down the intent and when bail should be granted by the court. The grounds are[5]

  1. Whether accused if released would be available for investigation and trial;
  2. Whether his release would interfere with a fair trial;
  3. Whether the accused is likely to be a social hazard or a threat to the State or State or Society, if released;
  4. Whether there has been inordinate delay in trial;
  5. Whether there is any special humanitarian reason necessitating release or incarceration of the accused; and
  6. Whether the acts allegedly committed constitute any offence or if there is material to support the allegations or if there is any legal impediment in the accused being convicted.
  7. The health, age,sex  of the accused person.[6]

Granting of bail during these unprecedented times comes under the humanitarian grounds.Looking upto the conditions it is evident that the intent of bail is not punishment rather the intent is fair trial, justice, accused should be available on the date of trial. Thereby looking upto the behaviour and nature of the accused bail must be granted. Although some conditions must be imposed so that the accused does not tamper the evidence nor does he threaten the victim. If the claim of health is valid and severe or the person is covid positive then he must be granted bail in the interest of justice.

Moreover, courts have seemed to be liberal in granting bail in terms of bail on medical claims. The court checks the authenticity of the claim by directing the jail superintendent to submit the medical status report of the accused. In various cases the courts have also fixed a time limit for interim bail for the accused to surrender on the end of the bail period.[7] Humane treatment to all acussed is a fundamental right. It is often argued that bail is not necessary that the due care of health and medical facility should be given in prison itself. Although  the researchers contentions are that if we have a well settled law that bail is a rule and jail is an exception then why do we find reasons to not grant bail.

Recent statistics show that the prisons in India are overcrowded.[8]Indian prisons are overcrowded with 14% more than the capacity. Reports says that more than two-thirds of the inmates are undertrials.[9]During the pandemic we all are aware of how overcrowding anywhere is derogatory to the health. So it becomes a mandate for the courts to grant bail in order to reduce the overcrowding. Therefore, if the offence by the accused is not serious in nature or if the crime is victimless then the court should grant bail imposing some conditions and after fixing bond to the accused

The supreme court directed the states/ UT to form high power committees high power committee to release prisoners immediately.The supreme court passed direction to decongest prisoners. The court issued direction to give high quality medical facility to the prisoners. The supreme court left it on discretion of HPC as to which prisoner to be released and which prisoner to be not. The HPC can decide this with reasonable classification by looking upto the intensity of the offence or sentencing or anything which the HPC deems fit.[10]High powered committee of various states have directed to release the prisoners of their states.[11]

In a recent case of National Alliance for People’s Union v The State of Maharashtra, the court vide order dated 20 March, 2020 issues directions for the formation of each state. The High-Powered committee must comprise of –

  • the Chairman of state legal service authority
  • the Principle secretary of home prison
  • The director general of home prison

This committee decided that which class and category of person can be released on interim bail. In order to decide the category of prisoners who can be granted interim bail. The court directed the HPC to release all prisoner who were released previously in 2020.The high-powered committee categorized prisoners in 3 different heads. The categorization was made with reasonable classification and intelligible differentia. Thereby, not violative of article 14 of the Indian constitution.

The categories here forth are-

  1. undertrial prisoners accused with an offence of punishable with less than 7 years
  2. the convicted person whose punishment is above 7 years
  3. then those prisoners who are arrested under special acts such as NDPS,MCOC, PMLA, MPID, NDPS, UAPA etc. 


Hence, the prisoners under the above mentioned conditions and with those reasons deserve to attain bail on the basis of health issues due to Corona virus. Even though it is a Right to Life under Constitution of India, but there are also criteria to be followed in order to attain bail with the covid angle. The courts should also step forth towards granting bail to the ones who are in need and are under bailable conditions.

[1] Pramod Kumarmaglik v. Saihna Rani,1989 Cri Lj 1772; Mansoor Alam  v. State of UP (2015) 4 SCC 731

[2] Commission on Human Rights, Report of the Working Group on Arbitrary Detention, Dec. 12, 2005 (E/CN.4/2006/7), available at:

[3]Bandhua Mukti Morcha v. Union of India AIR 1984 SC 812;  Paschim Banga Khet Mazoor Samity v. State of West Bengal (1996) 4 SCC 37

[4] Parmanand Katara v. Union of India, AIR 1989 SC 2039

[5] Lakshmi Shanker Gupta and Ors. v. State (19.04.1994 – ALLHC) : MANU/UP/1263/1994

[6] Jagdish kumar v. State (Delhi Administration), Cri Lj 730 (Del); Chintaman Tripathi v. State of UP 1991 CriLj 1176.

[7]Varavara Rao gets interim bail on medical grounds in 2016 Surjagarh iron ore mine arson case, The Print, 23 Feb., 2021

[8]Report of all India Jail Manual Committee, 1957-9, para 38.

[9]Why We Need to Talk About the Condition of India’s Prisons, The Wire,

[10]Coronavirus (COVID-19)| Overcrowding of prisons is serious concern; Consider releasing prisoners on parole/bail: SC to States/UTs, SCC Online, 23 March, 2020

[11]High Powered Committee Of Delhi High Court Submits Report On Release Of Prisoners, Remission Of Sentence, Emergency Parole Etc, Live Law, 7 May, 2021,

Author: Isha Singh from Indore Institute of Law.

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