Part 3: India’s Bail Jurisprudence: Need for Urgent & Comprehensive Revamp

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The History of Bail Jurisprudence

11. The history of bail reforms in criminal jurisprudence originates from the intense debates on the right to bail in Europe and, more particularly, the United Kingdom 10 . In the early criminal justice system of England, there was no provision of conducting a prior inquiry, before holding the jury and entitling the accused with the punishment 11 . The delay in receiving justice from the King/ Crown ranged from a couple of days to a few years and hence it became necessary for the accused/ defendant to obtain a provisional release from confinement or custody. Such sufferings and demands of the defendants triggered a debate around the right to bail in the Norman period.

12. According to Sir James Stephen, “the right to bail is as old as the law of England itself and is explicitly recognized by our earliest writers” 12 . The right to bail is recognised “in curt and general terms” by Glanville Williams 13 . In the year 1166, ‘jury of presentment’ was established by the Assize of Clarendon as the principal means of initiating trial and the sworn certainty of the appeal of felony gave way to accusation upon suspicion. 14

13. In the later years, the debate was followed by the introduction of obtaining release by Royal Writ, the Statute of Westminster I of 1275, the Bail Statute of 1554, and through other provisions, the bail jurisprudence of England reached the contemporary and current Bail Act of 1976.

DISCLAIMER : Views expressed above are the author’s own.

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