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Journalism of Courage
President Donald Trump on Monday signed an executive order targeting cashless bail in the United States. The order cuts federal funding for jurisdictions which allow the practice.
Trump blamed the practice for leading to an uptick in crime. The executive order says that authorities end up arresting the same individuals multiple times, “and dangerous criminals are sometimes rapidly released”.
Researchers, however, have said that Trump’s claims are baseless and there is no evidence to show that cashless bail has led to an increase in crime. The option is often only there for relatively minor offences anyway.
While granting bail, a court’s primary concern is that the accused does not evade trial and abscond, or in any manner hamper the ongoing probe by tampering evidence or influencing witnesses. As a safeguard, the court sets certain conditions for bail.
To ensure that the accused does not abscond, the court requires a guarantee or surety that they will not abscond. One of the ways in which this has been done historically is to take a cash deposit from the accused which is usually returned at the end of the trial. Failure to make this deposit means the accused will remain in prison till the trial is concluded.
(Note that this does not extend to all crimes: violent crimes usually left outside the purview of cash bail.)
Cash bail, by design, disadvantages the poor. Advocates of cashless bail — which does not come with a cash assurance — say that it often keeps innocent accused behind bars for even minor offences simply because they are poor and puts them under further financial strain, which itself can be a trigger for crime.
In the US, many states began to allow cashless bail after a Black teenager, Kalief Browder, spent three years in prison, including more than 700 days in solitary confinement, on charges of stealing a backpack because he was unable to pay $3000 for his release on bail. The case against Browder was eventually dropped, but Browder died by suicide in 2015.
Chapter 35 of the Bhartiya Nagarik Suraksha Sanhita, 2023, which replaced the Code of Criminal Procedure, 1973, lays down the process for releasing a person on bail.
Among the conditions for bail is the furnishing of a bond or a bail bond.
Bond: By signing a bond, an accused agrees to their bail terms and assures the court they will remain present for the trial. This is usually accompanied by a cash deposit, with the amount depending on the nature of the crime and the economic condition of the accused. This deposit can be forfeited if bail conditions are violated, and is refunded at the conclusion of the trial regardless of the outcome.
If an accused does not have the means to furnish cash, courts may consider releasing them on a personal recognisance bond (PR bond). This requires the accused to arrange for the cash within a specific time after being released on bail.
Bail bond: This is essentially a surety from another person or persons, along with a payment of a specific amount. These persons assure the court that the accused will abide by the bail conditions.
The court beforehand verifies the documents of the person signing the bail bond, who is then called before the court and asked questions regarding the accused and their own standing. This is to verify that the person guaranteeing the accused’s presence in the trial can indeed ensure that they do not abscond.
The person signing the bail bond can be a friend or family member, who themselves do not have a pending case against them, or an employer. Some courts require this person to show that they have a financial asset or a permanent place of residence as security. Some bail conditions also require the person to be a local resident of the district.
In Mumbai courts, a person standing surety for a certain amount, also requires to submit a solvency certificate, issued by a revenue officer, to verify their financial stability. This process may take days, if not weeks, delaying the grant of bail.
It is not too uncommon that a person is unable to come out of jail despite being granted bail simply because they cannot furnish the monetary sum required to guarantee their freedom.
There have been submissions made before the Supreme Court on accused languishing in jail for inability to arrange for a surety or pay a cash bail of the required amount, even as low as Rs 5,000.
In 2022, Maharashtra Chief Minister Devendra Fadnavis had said that there were over 1,600 persons languishing behind bars, unable to fulfil their bail conditions, including arranging for cash. There were over 600 such prisoners in the Mumbai Metropolitan Region alone, even as the state’s prisons have 12,343 more prisoners than they are designed to accommodate (as of July 2025).
The 268th Report of the Law Commission of India, submitted in 2017, pertained to bail provisions. It said that granting or refusing bail based on monetary surety was “contrary to Constitutional ethos”.
“The current system of bail based on financial control and objective assessment would lead to suspect classification and discrimination. Moreover, it would also impinge on the fundamental right to fair trial,” the report said.
In 2023, the Supreme Court had issued guidelines regarding cases in which an accused remains in prison for more than a week despite being granted bail. A Bench of Justices Sanjay Kishan Kaul and A S Oka directed that in such a scenario, the jail superintendent needs to inform the District Legal Services Authority, who then may depute a para-legal volunteer or a lawyer to visit jail and assist the prisoner’s release. This came after the National Legal Services Authority informed the court that 5,000 undertrials were languishing in jail despite grant of bail.
While accused can be released on a PR bond, trial courts often say that they have to maintain the balance between a person’s liberty and ensuring that the conditions of bail are such that the person remains available for the trial. This frequently leads to the rejection of pleas for release on PR bonds.
