| The contrary view, articulated in Salauddin Abdulsamad Shaikh (1996) constitutes an "absolute misreading" of the prior precedent of Gurbaksh Singh Sibbia (1980) and now stands overruled. Any action under Section 27 of the Evidence Act would be regarded as temporarily eclipsing or "implied" or "deemed" eclipse. But such an order does not affect the proposition that the normal rule should be not to limit the order to "a period of time". Anticipatory bail given to a person can continue till end of the trial. |
| The concurring opinion of Justice Ravindra Bhat preserves the spirit of Sibbia (while overruling the ultimate order) when it avers that the "urge for freedom is natural to each human being". Section 438 CrPC is "a procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presumption of innocence". As "denial of bail amounts to deprivation of personal liberty", the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when not imposed by the legislature. |
| This is, indeed, a most welcome move because it negates that anticipatory ball "does not encapsulate Article 21"; in fact, it is labelled as "erroneous". But does this opinion go so far as to "encapsulate" the Code provisions into Article 21? Here the learned Justice opines that "the issue is not whether Section 438 is an intrinsic element of Article 21: it is rather whether that provision is part of fair procedure". That "provision for anticipatory bail is pro-liberty" and enables "a facility of approaching the court for a direction that he or she not be arrested" and it "was specifically enacted as a measure of protection against arbitrary arrests and humiliation by the police, which Parliament itself recognized as a widespread malaise on the part of the police". This does not quite tell us that the absence (or repeal) of anticipatory bail would be plainly unconstitutional. |
| However, one must be grateful for small judicial mercies which would eventually pave a way towards recognising bail as a fundamental human right, and not merely find a compass for ascertainment of liberties that Parliament may not have intended to curtail. |
| The learned Justice also observes that "it would be useful to remind oneself that the rights which the citizens cherish deeply, are fundamental-it is not the restrictions that are fundamental". He recalls Joseph Story, the great jurist and US Supreme Court judge, who remarked that "personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice". While that is certainly true, is the judicial duty of a summit court compromised in saying that "it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power"? |
| Justice Bhat says that "the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and. unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years". |
| It can be well-argued that Article 32 power coupled with a duty to affirm the constitutional right to bail, should make such "danger" welcome as a complete means to the end of securing the very integrity of the structure of civil and political rights. |
A) Article 32
B) Constitutional right to bail
C) Both (a) and (b) above
D) Neither (a) nor (b)
Correct Answer: C
Solution :
(c) It can be well-argued that Article 32 power coupled with a duty to affirm the constitutional right to bail, should make such danger welcome as a complete means to the end of securing the very integrity of the structure of civil and political rights.
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