Pre-trial Detention: A Tool for Instant Justice?

<div> <div> <div> <div> Discretion is inevitable, but in the rule of law society there should be a relentless pursuit of constraining it. Excessive discretion, be it with the legislature, executive or judiciary, is a potential weapon to curtail liberty. The Criminal Justice System (‘CJS’) is a formal tool which the State can use to deprive the individual's life and liberty. CJS provides a framework for infliction of criminal sanction according to the due process and the principles of the fair trial. The various laws place the limits on the powers of the functionaries of the CJS to make sure that the deprivation of life and liberty occurs only when it is permitted within the ‘four corners of the law’ – which Constitutions define as ‘procedure established by law’ or ‘due process’. In substantive criminal law, to limit the discretion of functionaries of CJS, offences and punishments have been defined. Similarly, in procedural law various safeguards have been provided to the accused and fetters have been imposed on CJS functionaries to prevent the miscarriage of justice. The provision of bail is one of such important safeguards that ensures liberty and dignity to the individual during the pendency of investigation and trial. However, despite the importance of the bail to individual liberty, the bail jurisprudence remains mucky. There are no systematic efforts to overhaul the bail laws. This brings the question that whether, state as well as courts see any incentive in keeping the bail laws vague and ambiguous? We argue the answer in affirmative. In the first part of this piece, we layout the ambiguousness in existing bail laws. In the second part, we address an important issue: whether denial of bail is a tool for instant justice. In the final part, we conclude by arguing that bail laws need complete overhaul and piecemeal efforts are not sufficient. </div> </div> </div> </div> <div></div>