The Constitution Bench Reference in Sushila Aggarwal v. State

A Constitution Bench of the Supreme Court decided a reference made in Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr. [SLP (Crl.) 7281-82/2017, decided on 29.01.2020], where two questions had been posed for consideration:

(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court. [Para 1, Shah, J.]

Two separate opinions, and 133 pages later, we find that the five Justices unanimously answered the Reference (which is, frankly, just one question broken up into two) as follows: There is no statutory time limit on the protection of "Anticipatory Bail" given under Section 438 Cr.P.C., and nor does this protection automatically expire when an accused is summoned to Court. Such a limit can be imposed by the Court if it thinks fit, but should not be normally done. The Bench also went beyond the Reference, and "clarified" the law and practice on Section  438 Cr.P.C., by issuing 12 pointers for all courts to consider [See the section bearing signatures of the entire Bench].     

What led to the Reference?

The Reference made in Sushila Aggarwal seems to have been the result of two conflicting streams of opinion in past precedent. One line of cases, symbolised by the decision in Mhetre [(2011) 1 SCC 694] had held that there can be no limit as to the time duration of an order granting Anticipatory Bail. The second line of cases, symbolised by Salauddin [(1996) 1 SCC 667], had instead held that any order passed under Section 438 Cr.P.C. must be of a limited duration. And, at the heart of it all, was an old decision in Gurbaksh Singh Sibbia [(1980) 2 SCC 565], which had been interpreted and relied upon in both lines of cases [See Para 7.4 (Shah, J.)].

The Reference — Reaffirming Judicial Discretion in S. 438

It is a shame that the concise manner in which the issues were framed for the Reference (Yes, I am taking a dig here), did not contribute to a similarly concise set of opinions. Both opinions, of Shah, J. & Bhat, J., carry lengthy extracts from statutory provisions and prior precedent which unnecessarily burdens the reader. 

On cutting through the prolixity, one finds that both opinions are premised on the same logic — ensuring that judges have near-total room for discretion in considering any requests for Anticipatory Bail under Section 438 Cr.P.C [Para 7.5 (Shah, J.); Paras 68, 76 (Bhat, J.)]. While the opinion of Shah, J. answers both questions on this basis alone, Bhat, J. also offers independent bases to refute arguments to limit anticipatory bail simply because the investigation was over. As he observes, that an investigation stands complete is, by itself, a factor towards granting bail and not taking persons into custody [Paras 70, 76]. 

Both opinions view the conflicting decisions as having incorrectly interpreted Sibbia, insofar as they sought to create mandatory rules for courts in the realm of Anticipatory Bail. This discussion goes beyond rules imposing time limits, to also mention opinions suggesting that entire categories of offences should be outside the ambit of Section 438 [Paras 65, 68 (Bhat, J.)]. Through the opinions, we are repeatedly reminded that the sole basis for limiting judicial discretion in this realm of bail is an express provision in statute — anything less is, at best, a point of guidance for judges to help them exercise the weighty discretion that they wield [Para 56, 59, 62, 64, 68, 80 (Bhat, J.)]. 

Thus, at the end, it is confirmed that there is nothing warranting an outright refusal to consider an application under Section 438 Cr.P.C., except what may be specifically provided for in statute. Everything else, be it the nature of the offence, or the particular needs of the investigation, is part of the factors that courts must consider while deciding the fate of an application.

Appraisal — The Perennial Victory of Standards over Rules 

As discussed, at the heart of the Reference in Sushila Aggarwal is the Supreme Court's affirmation of standards over rules — enabling judicial discretion rather than curtailing it in any manner at all. If we look at the issue with this lens, then the choice appears almost like a foregone conclusion. Take up any branch of criminal procedure law in India, and it will show that similar conflicts between having strict rules versus malleable standards always end in victory for the standards. After all, since having standards implies more power for judges, who have more discretion, it is counterintuitive to expect a ruling that clamps this discretion in favour of bright line rules. 

But the problem is that in criminal procedure, sometimes clear rules are actually more useful than broad standards, and I fear that the Supreme Court in Sushila Aggarwal may just have compounded the pre-existing vagaries that cripple the practice of bail cases across most parts of India. Even though rules curtail wriggle-room for doing justice in exceptional situations, they provide a measure of certainty, consistency, and predictability that remains elusive when dealing with standards. And, at some level, this choice between rules and standards must also be cognizant of the system in which the choice is being made. Enhancing discretion implies a degree of trust in the ability and capability of the officers entrusted with that discretion, while rules ensure that the fate of an individual does not disproportionately hinge upon the peculiar attributes of any judge. 

It is unsurprising to read that the Supreme Court trusts judicial officers with discretion. But, can it be said that the trial courts across India, criminally overburdened as they are, have the capability to sit and consider the umpteen number of factors that the Court in Sushila Aggarwal suggests should be looked at while considering applications under Section 438 Cr.P.C.? I am not so sure.