Rethinking Presumption of Innocence Doctrine in India through a Minimum Interference Standard

9 Pages Posted: 2 Nov 2021

See all articles by Divyanshu Dembi

Divyanshu Dembi

O. P. Jindal Global University, Jindal Global Law School (JGLS)

Date Written: April 15, 2021

Abstract

In this paper I argue that courts should use their judicial discretion in granting bail and conditions imposed therein on a minimum interference standard (MIS). Under MIS the courts should only refuse bail when it is absolutely necessary in light of particular facts of the case. I argue that under MIS, we need to develop ‘trial as if innocent’ standard which would demand a higher threshold for depriving liberty unless absolutely necessary for fair trial or until guilt has been established. I introduce the concept of probable guilt bias to rationalise how presumption of innocence is understood in Indian bail jurisprudence. I’ve focused mainly on section 437 & 438 CRPC for doctrinal analysis.

Keywords: Bail, Presumption of Innocence, Criminal law

Suggested Citation

Dembi, Divyanshu, Rethinking Presumption of Innocence Doctrine in India through a Minimum Interference Standard (April 15, 2021). Available at SSRN: https://ssrn.com/abstract=3953364 or http://dx.doi.org/10.2139/ssrn.3953364

Divyanshu Dembi (Contact Author)

O. P. Jindal Global University, Jindal Global Law School (JGLS) ( email )

Sonipat, Haryana
Haryana, Haryana
India

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
314
Abstract Views
935
Rank
186,064
PlumX Metrics