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6 NUJS L. Rev. 549 (2013)
Inconsistent and Unclear: The Supreme Court of India on Bail

handle is hein.journals/nujslr6 and id is 583 raw text is: 





    INCONSISTENT AND UNCLEAR: THE

    SUPREME COURT OF INDIA ON BAIL


                        Vrinda Bhandari*

This paper seeks to analyse the law in respect of bail and pre-trial de-
tention in India, testing judicial precedent on the anvil of the presumption
of innocence with specific reference to two contrasting decisions of the
Supreme Court, earlier in Pappu Yadav v. Central Bureau oflnvestigation
and more recently in the 2G case in Sanjay Chandra v. Central Bureau of
Investigation. Itfocuses only on conditions of bail set forth in the Code of
Criminal Procedure and does not look at special legislation. The paper
concludes by suggesting measures for legislative and judicial reform to
harmonise law relating to bail across India.

         I. REVISITING THE PRESUMPTION OF
                          INNOCENCE

            The recent decision of the Supreme Court granting bail to the
accused in the 2G case has generated a lot of interest and heated debate.'
Nevertheless, to understand the true implications of the decision and how it
affects bail jurisprudence in India, it is necessary to revisit the principles of
presumption of innocence.

            The principle of presumption of innocence represents far more
than a rule of evidence.2 It embodies freedom from arbitrary detention and
serves as a bulwark against punishment before conviction. More importantly,
it prevents the State from successfully employing its vast resources to cause
greater damage to an un-convicted accused than he/she can inflict on society.3

            While considering bail applications of the accused, courts are re-
quired to balance considerations of personal liberty with public interest. This
paper argues however, that Indian Courts have applied inconsistent standards
in connection with the law in respect of bail and have rarely, if ever, paused
to consider the ramifications of their decisions on the right to be presumed

   B.A., LL.B. (Hons), National Law School of India University, Bangalore; BCL Candidate in
   Law, Magdalen College, University of Oxford.
   Sanjay Chandrav. CBI, (2012) 1 SCC 40: (2011) 6 UJ 4077 (SC).
2 L.H. Tribe, An Ounce ofDetention: Preventive Justice in the World ofJohn Mitchell, 56(3)
   VIRGINIA L.R. 371, 404 (1970); M. Zander, Bail: A Re-appraisal, 67 CRIMINAL L.R. 25, 26
   (1987).
3 A. Ashworth, Four Threats to the Presumption ofInnocence, 10(4) INT'L J. OF EVIDENCE AND
   PROOF 241, 261 (2006).

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