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 ba
il.
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.

2 comments

  1. It is argued that one should differentiate between The Atrocities Act and TADA because crimes enumerated in the latter act pose a more serious threat. This reflects normalisation of systematic SC/STs oppression in our country when, in reality, crimes under Atrocities Act are so rampantly occurring and alienating ST/SCs, pushing them to the verge of taking up arms and becoming the ‘biggest threat to internal security’. This Act and Section were introduced after The Untouchability (Offences) Act, 1955 and Protection of Civil Rights Act, 1976 failed to curb the menace. Looking at the cases from high courts it is evident that anticipatory bails are routinely given through circumventing this law, sometimes even when prima facia the offence under the Atrocities Act has been made out. It is just like cases of crimes against women where stringent laws are being introduced but society and legal institutions are not psyched to implement it. True Ashish Nandy’s case was unfortunate but we cannot lose sight of larger picture. At the moment, the prevailing SC/ST (Prevention of Atrocities) Amendment Ordinance, 2014 has also kept the section intact.

  2. section 18 is unconstitutional because the Govt is duty bound to secure the liberty of every citizen –whether dalits of non dalits. It is the duty of the govt to provide security to non dalits from false accusations of dalits. If dalits can be protected from non dalits why should non dalits be left in the lurch. Are non dalits not indian citizens? is every non dalit an oppressor? the sc/st act protects a dalit from false prosecution but who shall protect others from false prosecution of dalits.

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