Reforming The Bail System: A Critical Examination Of Balancing The Fundamental Rights Of The Accused With The Imperatives Of Public Safety In Modern Criminal Justice
- IJLLR Journal
- 3 hours ago
- 1 min read
Mohammad Arham, Aligarh Muslim University
Mohd Saifullah Khan, Aligarh Muslim University
ABSTRACT
This paper critically examines bail as the procedural hinge between the presumption of innocence and the imperatives of public safety in modern criminal justice. It traces historical foundations from English common law to contemporary statutory frameworks and situates bail within constitutional due process, natural justice, and human rights norms (UDHR, ICCPR). The analysis develops a theoretical lens that balances utilitarian goals, reducing the risk of flight, reoffending, and witness tampering, with the primacy of individual liberty, dignity, and fair trial rights. Criminological insights underscore heterogeneous risk, the collateral harms of unnecessary pre-trial detention, and the wealth effects of monetary bail that entrench inequality. A comparative review highlights India’s rights-forward jurisprudence and default-bail safeguards, U.S. shifts from cash bail toward risk-based supervision, the U.K.’s structured conditional bail (including electronic monitoring), and trust- and proportionality-oriented approaches in Scandinavia and South Africa. The paper identifies four structural challenges: wealth-based discrimination, custodial overcrowding driven by undertrials, delay and arbitrariness in decision-making, and monitoring/corruption gaps. It proposes an integrative reform agenda: codified, means-sensitive and risk-responsive guidelines; standardized but auditable risk assessments with human override; rigorous enforcement of statutory timelines and reasoned orders; expanded pre-trial services and technology-enabled compliance; and socio-legal supports, including early legal aid and community supervision. The core claim is that a principled bail regime need not trade liberty for security: by individualizing risk, applying the least restrictive adequate conditions, and ensuring transparent review, systems can simultaneously safeguard rights, protect communities, and enhance institutional legitimacy.
Keywords: bail reform; presumption of innocence; proportionality; risk assessment; public safety.
