This post is not prompted by a recent case or statutory development, but instead the desire to take a step back and look at "bigger picture" concerns in an area of law, navigating which is akin to fortune-telling on the best of days and charting a hidden minefield on most others. This is Anticipatory Bail, that great and peculiar legal tool that lawyers in South Asia are familiar with [yes, it is not only India which has this remedy folks]. For the uninitiated, Anticipatory Bail is a legal remedy which enables a person to approach a court asking for bail "in the event of an arrest". In India, this is statutorily provided under Section 438 of the Criminal Procedure Code 1973 [Cr.P.C.], and requires that an accused show reasons to believe that she is likely to be arrested on accusation of having committed a non-bailable offence. If a court is satisfied in respect of the same, then it can pass an order directing the police to release the individual on bail in the event that it decides to arrest her, where this Anticipatory Bail will come with certain conditions such as ensuring cooperation with investigation and not coercing witnesses, etc.
The primary cause for confusion in respect of the legal position on Anticipatory Bail is, as one would expect, the manifold judicial decisions which have expounded on its scope and ambit. After all, merely reading the text of the provision might lead one to think that Anticipatory Bail is there for the asking if a person can show reasons to believe she will be arrested for accusations of committing a non-bailable offence. This is hardly so, as a court "may" grant the relief, and this question of determining the proper exercise of judicial discretion which has been the subject of controversy in all these decisions. The point being made here is not simply to complain about this confusion or berate courts for it. Instead, what I want to focus upon is a choice that the Supreme Court of India made in 1980 in respect of the judicial discretion afforded in matters of Anticipatory Bail in India, when a Constitution Bench of that Court considered the then-recently-added provision in a batch of petitions which was reported as Gurbaksh Singh Sibbia v. State of Punjab & Ors. [AIR 1980 SC 1632 ("Sibbia")].
This was a choice to remain faithful to the perceived framers' intent behind adding Anticipatory Bail, or to go beyond these confines by adopting a more purposive interpretive bent. The Constitution Bench opted for the latter, and the consequences have been bittersweet. On the one hand, Anticipatory Bail became an option to secure personal liberty more generally and it also added teeth to the fundamental right secured under Article 21 of the Constitution. On the other hand, this approach militated against what one might imagine as the DNA of the criminal process by denying arrest and thus allowing police investigations and / or the public interest to be "frustrated" as a result. Which is why, in spite of it being backed by a Constitution Bench decision of the Supreme Court, the liberal approach to Anticipatory Bail continues to raise many eyebrows and often meets with disapproval from that very Court till date.
The Interpretive Question in Anticipatory Bail
The framers approach, I argue, was to keep Anticipatory Bail as a remedy against baseless accusations — as a defence against being arrested in a malicious prosecution. This was the context in which such orders had been sought for before various High Courts in the two decades prior to the Cr.P.C. 1973, albeit with limited success. It was this context which led to the question being presented before the Commission.
However, the 41st Law Commission Report (1969) sponsoring insertion of a provision for Anticipatory Bail did not stipulate this malicious prosecution context as the only purpose for which such a relief of an Anticipatory Bail order may be needed. The Commission noted in Para 39.9 that:
The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. ... The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. [Emphasis mine]
Anticipatory Bail was therefore not only as a relief against malicious prosecution but also as a potential remedy against unjust incarceration caused because of the slow pace at which the legal system worked as people who otherwise be released on bail would have to "remain in prison for some days" and then apply for bail. It would be a stretch to consider this as a general expansion as "some days" come in almost every case. The only sensible way would be to treat this suggestion as offering a remedy in the exceptional case, and not more; doing so would render the distinctions between bail and Anticipatory Bail redundant which was certainly not what the Law Commission wanted to do. This view of treating Anticipatory Bail as the exceptional remedy is only buttressed if one considers the 48th Report which followed the introduction of the Criminal Procedure Code Bill of 1970 — the basis of the Cr.P.C. 1973 — wherein at Para 31 the Law Commission did retain its support for the measure but suggested it be an option only in "very exceptional cases".
When, in 1976, the Supreme Court took up the limited issue of the exclusion of Anticipatory Bail in the statutory context of the the Defence of India Act 1971 in Balchand Jain [AIR 1977 SC 366], the separate opinions of Justices Bhagwati and Fazal Ali echoed this view of Anticipatory Bail being fit only for the exceptional case. The Punjab & Haryana High Court followed this view in its decision dismissing the petitions filed by Gurbaksh Singh Sibbia and others [1978 Cri LJ 20]. In a bid to settle the confusion that it had seen arise, in some measure due to the Law Commission's views and also due to the charged political context into which Anticipatory Bail was inserted, the High Court went ahead and offered strict guidelines regulating the scope of judicial discretion on the point of Anticipatory Bail. One of the guidelines was to permit Anticipatory Bail as an option only where an issue of mala fides was being alleged in respect of the accusations levelled against the individual seeking relief. The High Court considered limiting the scope of discretion as advisable also because it seriously bought into the argument that an expansive approach to Anticipatory Bail would stymie investigations. It agreed with the government counsel that speed was of the essence in investigations where the initial period of police custody was often critical to solving the case. Liberal pre-arrest bails would thwart investigations and hurt the public interest.
The strict guidelines authored by the Punjab & Haryana High Court seemed to extinguish the remedy of Anticipatory Bail altogether and met with stern disapproval from the Supreme Court in Sibbia, observing that it did not see "why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care imaginable." The worries about thwarting investigations by depriving police of custody during the initial period were played down by the Supreme Court which was of the view that all investigative needs could be met with placing conditions requiring that a person cooperate with police. There was little discussion about the value of custodial interrogation to an investigation. Rather than see value in police custody, it is fair to say that in this post-Emergency, post-ADM Jabalpur, Maneka Gandhi era of the Supreme Court what weighed more heavily with the Bench was the threat posed by arbitrary arrests to personal liberty. One could see the stark difference in approach when, rather than talk about the importance of custodial interrogation, the Supreme Court spoke about a need to respect the presumption of innocence of the person applying for Anticipatory Bail. As a result, the only acceptable approach was an expansive one and not one which insisted on mala fides to be established for granting Anticipatory Bail. The Court acknowledged that there could be problems caused to investigations by Anticipatory Bail, but it noted that "a wise exercise of judicial power invariably takes care of the evil consequences which are likely to flow out of its intemperate use."
The Fallout: Between a Rock and a Hard Place
In 2020, Sibbia was endorsed as being the correct and authoritative position of law on Anticipatory Bail by another Constitution Bench of the Court in Sushila Agarwal [2020 SCC OnLine SC 98] where, if anything, the Supreme Court went even further than Sibbia in endorsing an expansive and liberal approach to Anticipatory Bail. However, the journey from 1980 to 2020 is miles away from being imagined as a linear progression in the legal position affirming greater protection for personal liberty. Beneath these lofty pronouncements of the Supreme Court about Anticipatory Bail lies a great degree of reservation around this remedy. Just as an example, how can one square the law as laid down in Sibbia with the judgment in P. Chidambaram v. Enforcement Directorate [2019 SCC OnLine SC 1143] rendered by the Supreme Court in September, 2019, denying Anticipatory Bail to the petitioner.
Yes, arrests can be unnecessary and arbitrary, but at the same time they are critical to ensure the criminal process "works" in the eyes of stakeholders. Arrests and the police custody which may follow within the first fourteen days thereafter are still accepted as being the most important part of any investigation. This is a feature of the system which the Supreme Court itself recognises time and again [see, as an example, CBI v. Anil Sharma, (1997) 7 SCC 187], and in doing so goes against the logic of Sibbia that the interests of an investigation can be sufficiently secured even without police custody. In addition to this, the criminal process endorses a logic that pre-trial arrests and custody, for at least some duration, are justified in cases of serious crime. Bail has never been only about ensuring that a person faces trial, but its desirability has historically been linked to the gravity of accusations. This bent of mind has, naturally, accompanied the exercise of judicial discretion on the point of Anticipatory Bail. A good example of this is the 2019 judgment in P. Chidambaram which reflects the consistent hesitation of courts to allow Anticipatory Bail for economic fraud. If anything, the reservations in granting Anticipatory Bail in serious crime appear to be even more pronounced than those associated with the grant of regular bail in this regard, as is evident from the complete exclusion of Anticipatory Bail as a remedy in certain statutory contexts — for example, anti-terrorism laws.
In expanding the idea of Anticipatory Bail back in 1980, the intention of the Supreme Court in Sibbia was to make sure that this new tool is not jettisoned due to perceived fears of certain sections. However, the manner in which the Court sought to realise this was to leave everything to judicial discretion. The result is a branch of law that is pockmarked by inconsistency and uncertainty, which are perhaps the two worst things that an accused or potential accused person has to contend with. Anticipatory Bail became exactly like the concept of bail in respect of non-bailable offences — a concession, not a right.
It would be surprising to see Anticipatory Bail being scaled back to a pre-Sibbia position as a remedy only in cases of malicious prosecutions, even though this might be the most desirable way to make sense of the legal position. This perspective still continues to inform the law, in my opinion, and in practice it might still be the most common category of cases in which Anticipatory Bail is granted. It could well be argued that this perspective neatly explains why courts remain hesitant to accept Anticipatory Bail in contexts where the accusation comes not from private parties, but from government officials who are presumed to do their job correctly. However, the recognition of other residual categories of deserving cases for the grant of Anticipatory Bail is seen as too important to give up, and Sushila Aggarwal underscored that the Court still sees Anticipatory Bail as being a potential tool to help reduce arbitrary arrest and detention. Of course, just not a very good tool. As a result, it is fair to imagine Anticipatory Bail continuing to seem like going to play slots in a casino and hoping to get lucky till the system somehow moves past its preference for arrests and pre-trial custody of accused persons.