Liberty In The Shadow Of Gravity: A Constitutional Critique Of Bail Jurisprudence In India
- IJLLR Journal
- 2 hours ago
- 1 min read
Priyanshu Maheshwari, Institute of Law, Nirma University
ABSTRACT
This paper critically examines the jurisprudence of pre-trial detention in India, focusing on the constitutional challenges posed by the 'gravity of offence' as a consideration in deciding bail applications. It argues that the undue reliance on this criterion, codified in the Bharatiya Nagarik Suraksha Sanhita (BNSS) and often applied in judicial practice, operates as a form of punitive detention, undermining the core constitutional principles of the presumption of innocence and the right to personal liberty enshrined in Article 21. By analyzing landmark judicial pronouncements, this analysis demonstrates how the bail system has deviated from the foundational dictum that "bail is the rule and jail is the exception." A comparative study of the bail systems in the United States, the United Kingdom, and Canada illustrates how a more structured, risk-based approach can better balance individual rights with legitimate state interests. The paper concludes by recommending legislative and judicial reforms to reframe the bail test, shifting the focus from the unproven severity of a charge to a rational assessment of flight risk and danger to the community. Such a reform is essential to ensure that the process does not become a punishment and to uphold the constitutional promise of equal justice.
