Sunday, February 03, 2013

Guest Post: Anticipatory Bail under the SC/ST (PoA) Act

Shivendra Singh graduated from the NALSAR University of Law, Hyderabad, in 2010 and is currently an Associate with Legal Options, New Delhi. The views are personal.

Just like Mr. Ashis Nandy, I recently came to know that anticipatory bail is ruled out for the offences under the SC/ST (Prevention of Atrocities) Act, 1989. Is this blanket exclusion of anticipatory bail by Section 18 of the SC/ST (Prevention of Atrocities) Act constitutional?
     Section 18 of the SC/ST (Prevention of Atrocities) Act states,
Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.
The Law Commission of India in its 41st Report recommended the introduction of a provision for grant of anticipatory bail, and it was incorporated as Section 438 in the Code of Criminal Procedure, 1973.  The power to grant anticipatory bail is only conferred on a Court of Session or the High Court in favour of people apprehending arrest in any non-bailable offence. A unanimous five-judge Bench of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 linked Section 438 of CrPC with personal liberty of an individual, as is evident from this extract of the judgment:
We find a great deal of substance in Mr. Tarkunde’s submission that since 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 no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein.
A Bench of two judges of the Supreme Court has enriched this confluence of Section 438 of CrPC and personal liberty in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 to state that the restriction on the provision of anticipatory bail under Section 438 limits the personal liberty of the accused granted under Article 21 of the Constitution of India.
I believe that a blanket exclusion of anticipatory bail under the SC/ST (Prevention of Atrocities) Act is in violation of Article 21 of the Constitution. The issue has been agitated before the Supreme Court on two separate occasions without any success due to a myopic and incorrect understanding of the decision in Gurbaksh Singh Sibbia (supra). In State of MP v. Ram Kishan Balothia, (1995) 3 SCC 221, a two-judge Bench of the Court had to consider whether the denial of the right to apply for anticipatory bail in respect of offences committed under the SC/ST (Prevention of Atrocities) Act was violative of Articles 14 and 21 of the Constitution. The Court rejected the challenge based on Article 14 stating that anticipatory bail is not made available to persons who commit the offences under the SC/ST (Prevention of Atrocities) Act because when members of the Schedules Castes and Schedules Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. It is submitted that such a fear is irrational as Section 438 (2) of CrPC confers the power on the High Court or Court of Session to impose appropriate restraints and conditions in the order of anticipatory bail to allay such concerns. The Court held that anticipatory bail was a statutory right conferred long after the coming into force of the Constitution and cannot be considered as an essential ingredient of Article 21. Thus, according to the Court, the non-application of Section 438 of CrPC to a certain special category of offences was not violative of Article 21. It is submitted that this reasoning is clearly at variance with the decision in Gurbaksh Singh Sibbia (supra). The second limb of the Court’s reasoning in Ram Kishan Balothia (supra) was that in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 a similar provision in Terrorist and Disruptive Activities (Prevention) Act, 1987 was upheld. Without going into the vexed question of the constitutionality of draconian anti-terror laws, it is submitted that it is a wrong analogy to compare SC/ST (Prevention of Atrocities) Act with TADA as the offences enumerated in the two legislations are different in character. Furthermore, the coercive machinery of criminal law is set in motion in the former by private complainants and in the latter by the State. It is unfortunate that the exclusion of anticipatory bail in the State of Uttar Pradesh was inter alia used in Kartar Singh (supra) to belittle the high principle that every person is entitled to benefit from the presumption of innocence in criminal law. It is even more unfortunate that even if Mr. Ashis Nandy had obtained anticipatory bail in all the States where FIRs were lodged against him, the Uttar Pradesh Police could have nabbed him at any point of time!
A Bench of two judges of the Supreme Court in Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC 795 has held that if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail as per Section 18 of the SC/ST (Prevention of Atrocities) Act. Should the law be so unfair? gloriosum est iniurias oblivisci.
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