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Report No. 268

A. Presumption of innocence

2.4 Presumption of innocence and the duty of the prosecution to prove the guilt of the person accused of an offence, is the golden thread in criminal law jurisprudence.18 Every individual charged with a crime has a right to be presumed innocent until proven guilty.19

2.5 The guideline that bail be the general rule and jail an exception, is the "logical and consistent adaptation of the principle of presumption of innocence to the pre-trial stage."20 The principle is enshrined in Article 11 (1) of the Universal Declaration of Human Rights, 1948 (UDHR), Article 6 (2) of the European Convention on Human Rights (hereinafter ECHR), Article 48 (1) of the Charter of Fundamental Rights of The European Union (hereinafter EU Charter) and Rule 111 of the United Nations Standard Minimum Rules for The Treatment of Prisoners also known as the Nelson Mandela Rules21.

2.6 The United States Supreme Court has adopted both restrictive and liberal interpretation of presumption of innocence. In Stack v. Boyle22, the court conclusively held that unless this right to bail before trial is preserved, the presumption of innocence, secured after centuries of struggle, would lose its meaning. However, in Bell v. Wolfish23 it states conversely that the right to be presumed innocent until proven guilty is not operative at the stage of bail.

Similarly, the U.S Supreme court in United States v. Salerno24 has clarified the exceptional nature of detention pending trial to be in effect only when it is found that there is an unequivocal threat to the safety of individuals and community. Justice Marshall in Salerno (supra) stated that presumption of innocence in favor of the accused is the undoubted law and its enforcement lies at the foundation of the administration of our criminal law." He concludes that such provision in the Bail Reform Act would eviscerate the presumption of innocence and is unconstitutional.

2.7 The Supreme Court of Canada in R. v. Hall25 held that the denial of bail has a detrimental effect on the presumption of innocence and liberty rights of the accused. However, in R. v. Pearson26, the court clarified that this principle must be applied at the stage of trial and not at the stage of bail because during bail, guilt or innocence is not determined and hence, penalty must not be imposed.

2.8 The stance taken by the Supreme Court of Canada in Pearson is in consonance and conformity with the perspective of the Kerala High Court in State v. P Sugathan27 where the court held that the salutary rule is to balance the defendant's liberty with public justice. Pre-trial detention in itself is not opposed to the basic presumptions of innocence. It observed that: Ensuring security and order is a permissible non-punitive objective, which can be achieved by pre-trial detention. Where overwhelming considerations in the nature aforesaid require denial of bail, it has to be denied.

2.9 Consequently, it may be surmised that pre-trial detention beyond the strictly necessary limits, poses a serious threat to the principle of 'presumption of innocence of the accused'. The revocation of bail is dependent on the presumption being dislodged by strong material pointing towards substantial probability and clear and convincing evidence of the guilt in relation to an offence.28 The Supreme Court of India has opined that the presumption of innocence would be effective by favoring bail.29

Amendments to Criminal Procedure Code, 1973 - Provisions relating to Bail Back

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