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

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