question_answer

Writing in India Legal (November 11, 2019), I described "“snakes and ladders type of adjudicatory approaches”" that render “"the Supreme Court itself...a house hermeneutically divided"”. For the most part, the Court regards grant or refusal of ball as an ongoing discretionary aspect of the administration of criminal Justice policy. On the other side is the judicially robust assertion (maintained ever since and memorably enunciated by Justice Krishna Iyer in Moti Ram, 1978) that regards bail as a matter of Article 21 rights to life and liberty under the right to constitutional remedies (Article 32) which the apex court has both the power and the duty to preserve, protect and promote.

As late as 2011, in Mhetre, Dr Justice Dalveer Bhandari (and Justice KSP Radhakrishnan) wrote extensively (paragraphs 36-84) on the virtue and value of both the constitutional and “"natural”" right to life and liberty in the particular context of bail.

It even noted the sadly well-known fact that a “"great ignominy, humiliation, and disgrace is attached to arrest...not only for accused but for whole family and at times for the entire community”", because “"most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage”". This itself strengthens the view that pre-conviction bail should be a rule emanating from the mandate of Article 21 and custodial confinement a rare departure from the norm.

I also urged the convening of a larger bench "“to decide, once and for all, the two views in the Supreme Court"”; an explicit reference to this "“domain will, of course, underscore the speedy advent whether of human rights in the administration of criminal justice as well as promote more efficient and equitable investigation of the crimes of the powerful”".

Now at least we had a five-judge bench which considered two questions: whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period or whether “"the life of an anticipatory ball should end at the time and stage when the accused is summoned by the court”".

The second question concerned the imposition of conditions in anticipatory bail orders.

It is noteworthy that the Court (Justices Arun Mishra, Indira Baneijee, Vineet Saran, MR Shah and S Ravindra Bhat) while not directly deciding the issue of whether bail is a fundamental rights issue, considered at least these two questions. It was valuably clarified that it is not “"essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest"”. Further, while it "“would be justified to impose other restrictive conditions”", these would have to be judged on a case by case basis. Such conditions may not be imposed in “a routine manner, in all cases” and "“limiting conditions may not be invariably imposed"”. Nor should decisions about anticipatory bail be made by “"blanket"” orders.

Clearly this ruling does not “"in any manner limit or restrict the rights or duties of the police or investigating agency”" to probe the charges against the pre-arrest bail. But it insists on avoidance of a habit or a blanket rule, detracting from reflexive reasons for denying bail. And while evidence, under Section 27 of the Indian Evidence Act, can be taken for discovery of any material evidence, “"there is no question (or necessity) of asking the accused to separately surrender and seek regular bail”".

In Moti Ram, 1978, what did Justice Krishna Iyer enunciate?

A) Bail is comparable to Article 21

B) The apex court has the power and duty to protect Article 21 under Article 32

C) Both (a) and (b)

D) Neither (a) nor (b)