–By Abhinav Sekhri
(Special thanks to Ashna D and Aniket Singh for their help with research on some aspects.)
In 2019, the State of Uttar Pradesh amended the Criminal Procedure Code of 1973 insofar as it applied to the state, to re-insert Section 438 (its at the end of the linked file) which provides for anticipatory bail. This came forty-three years after the original amendment passed in 1976 by which Section 438 had been deleted, by way of Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act of 1976 [“1976 Act”].
This came almost nine years after a government-appointed commission had recommended the move. The Commission observed that the objects accompanying the 1976 Act had claimed deletion of anticipatory bail was necessary because it was creating “practical difficulties”; which, the Commission reasoned, was a thinly-veiled justification provided to reduce the scope of personal liberty during the state of Emergency prevailing at the time (1975-77). Since the Emergency was long gone, it no longer made sense to continue without anticipatory bail in the state.
The deletion of anticipatory bail in Uttar Pradesh had always piqued my curiosity. The justification offered and accepted in 2009 — that it was a reaction to the declaration of Emergency — neither seemed complete nor accurate. That the Supreme Court did not fully explore the issue while upholding the constitutional validity of the amendment in Kartar Singh [yes, the TADA judgment] was also unhelpful — all that the judgment carried was the submission of the state counsel that the 1976 amendment was passed to meet the “deteriorating situation”.
This set me off on a course of digging to try and get better answers. This post is the result of that exercise.
Setting the Scene
After two decades of various courts coming at mostly the same conclusion—that anticipatory bail could not be granted under the Criminal Procedure Code of 1898—it was mildly surprising for anticipatory bail to be codified as a possible remedy under Section 438 of the new Criminal Procedure Code in 1973. When this relief was debated in Parliament, one general critique was its potential to upend criminal investigations by denying police the chance of arrest and interrogation. On top of which was the more vocal criticism about this relief being designed to only favour the rich litigants who would get word of potential cases and then rush with their lawyers to sessions courts and high courts.
A combination of the two contributes to the kind of scandal standard left-leaning politics of the time loved (and still does), and this led anticipatory bail to earn mentions in parliament during question hour even before its codification — usually, in relation with alleged smugglers (For instance, during Question Hour in the Lok Sabha on 01.09.1972). The discontent, perceived or otherwise, with anticipatory bail was such that, within a year of the new Code codifying the relief, a Committee had been setup in 1974 at the central level to look into the question of its “misuse”. On the basis of parliamentary questions in 1977 (see,Lok Sabha Debates of 14.12.1977), it appears that this Committee looked at data for all of 1974 and concluded that there were many cases in which investigations were delayed because of anticipatory bail, and that it was being taken “advantage” of by persons “concerned in criminal activities“.
Most of the other changes brought about by the 1973 Code did not affect the existing scheme of rights but affected administration of criminal law by separating the functions between executive and judiciary — a pre-independence demand, and later a constitutional promise enshrined in the Directive Principles of State Policy. The new Criminal Procedure Code separated the police from the prosecutorial wing, took away judicial functions from executive magistrates, and reduced the ability of governments to handpick courts for dealing with specific classes of cases. Many states had already taken steps towards realising the separation between executive and judiciary prior to 1973, but very few states had gone to the lengths that the new Code asked them to travel.
Uttar Pradesh was no exception. It did not take active steps to rectify inconsistent practices with the new regime, and so it only a matter of time before the existing practices were challenged in court. By two separate judgments passed in 1975, the Allahabad High Court set aside government circulars (i) placing prosecutors under control of the police [August 1975], and (ii) placing all cases prosecuted by the CBI within the state of U.P. before one single court [November 1975]. The result of the former would be to disrupt how trials took place across the state. The latter would potentially result in a transfer of thousands of cases, as well as the establishment of several new courts across the state to then handle them.
Such unplanned financial outlay usually triggers quick government response. The same happened here, and the government decided to take immediate action by promulgating an ordinance on November 28, 1975. It was this Ordinance which then became the 1976 Act, in which anticipatory bail met its demise.
Legislative Debates
The previous section demonstrated that, it wasn’t the Emergencywhich led the U.P. government to delete the provision on anticipatory bail — there were rumblings at a central level prior to 1975. Further, the events leading up to the 1976 Act suggest that the deletion of anticipatory bail was one small part in what was a broader set of changes which the government pushed through to circumvent a need to change the existing administration of justice in the state. This helps understand the contents of the 1976 Act better as well.
It would have been great to have the 1975 Ordinance and then compare it with the 1976 amendment to see if there were new insertions proposed in the Bill from what was earlier pushed through hurriedly, but I was not able to get my hands on it. What I could get access to was the legislative debates of 30.03.1976 leading up to the 1976 Act replacing the ordinance, which are available on the government website (can also be seen here for convenience) in Hindi. The debates are fascinating and, at least going by the opposition, would have one think that the High Court’s judgments of 1975 were nothing but a convenient excuse to usher in a set of regressive amendments to the criminal law. The real driving force was the Emergency. By way of these changes, the government wanted to halt the separation of the executive from the judiciary, and thus keep its vice-like grip on the administration of justice in the state.
On the question of anticipatory bail, the opposition members asked what, if any, were the glaring instances of abuse which led the government to propose such a radical change? Anticipatory bail was new, yes, and perhaps viewed with suspicion by everyone — but that had not led any other state to delete it altogether. The reply brought up the classic, haunting image of the white-collar criminals — smugglers, hoarders and black-marketeers — all taking advantage of this new provision. It wasn’t only such kinds of offenders, but all notorious criminals seemed to be taking advantage of the law as per the government. Ultimately, as the law minister Prabhu Narayan put it, as everyone agreed that the police had a right to investigate fully, and since it was evident that the provision for anticipatory bail was used to stymie investigations especially by white-collar criminals and notorious persons, deleting the provision was the only possible choice for the government.
Parallel Developments at the Centre
The 1976 Act was published in the gazette on 01.05.1976. On 26.08.1976, a Bill had been taken up for discussion in the Rajya Sabha proposing amendments to the Criminal Procedure Code, which included a suggested amendment deleting Section 438 altogether. The Deputy Minister for Home Affairs remarked that “Unfortunately, experience shows that this provision has been availed of mostly by rich people, white-collar criminals and others. It has, therefore, been proposed in Clause 31 that this provision should be deleted.”
The proposal did not meet with wholesale opposition; rather, as one member put it, it felt as if “that experiment had not succeeded“. The Code of Criminal Procedure (Amendment) Bill, 1976 was passed by the Rajya Sabha and sent to the Lok Sabha. It was only because Parliament was dissolved that the debates were not carried forward on the same. However, when on 14.12.1977, questions were put up to the new Janata Government on amendment of anticipatory bail, and the Deputy Minister for Home Affairs replied that the question of amending some provisions including anticipatory bail was being examined.
A year later, on 28.11.1978 the new government introduced a bill in the Lok Sabha to amend the 1973 Code. It was based on the same Bill that was passed in the Rajya Sabha back in 1976, but deleted clauses which the government now thought were “unnecessary and detrimental to the interests of the parties“. This included the clause deleting anticipatory bail, finally setting the controversy to rest. Of course, these developments at the centre did not compel any change of heart in the State of Uttar Pradesh. Even as the state passed further amendments tweaking the Code in 1977, anticipatory bail remained ousted.
Connecting the Dots
The brief glimpse into the turbulence that accompanied the codification of anticipatory bail in the Code of Criminal Procedure 1973 gives us a window into the circumstances which led to the forty-three year long absence of Section 438 from the State of Uttar Pradesh (though not an absence of anticipatory bail, which remained alive as an extraordinary relief given by the High Court). Ascribing that move to the Emergency and the discomfort it generated towards personal liberty is a convenient, though ultimately inaccurate, tale. Those circumstances certainly would have played a role behind the 1976 Act, but history suggests that the discontent with Section 438 existed from before, and if anything, that sense of uneasiness has never gone away. It resurfaces each time anticipatory bail is granted in a media-friendly case, at which point talking-heads cry foul over criminals “taking advantage” of the law.
This uneasiness with “criminals taking advantage” of what the law itself provides is an irrational, emotive outburst. But it has shaped the legal regime on bail and anticipatory bail over the years. Legislatures have excluded anticipatory bail outright in various contexts after Uttar Pradesh first did it, and have also placed much stricter regimes for granting bail for certain offences. These exceptional regimes have later been upheld by constitutional courts as well. All of which proceeded on the same fallacy — labelling persons accused of certain crimes as criminals, which justified lengthy pre-trial custody in spite of the prevailing presumption of innocence. The sentiment is evident in how Uttar Pradesh has reintroduced the provision. It did not simply adopt what the central law states, but modified Section 438 to exclude its application in what might seen as “serious crimes”, i.e. offences punishable with death and, of course, those punishable under the UAPA.
If we manage to look past the hullabaloo, we come across a classic struggle at play here. Underneath all that hasty labelling of persons, I would argue, is the longstanding executive mistrust of unhindered judicial independence. It is that same struggle for separating judicial and executive functions within the criminal law, which has been going on since before India’s independence.
Think about it: what the law confers in respect of non-bailable offences is merely a right to apply for bail / anticipatory bail — whether or not you get relief depends on the court. Trusting judicial discretion on matters of bail and anticipatory bail is the defining, albeit problematic, feature of the legal regime in India. In a setting where arrests and custodial interrogation is still viewed as critical for criminal investigations, courts are trusted to make the right decision on matters of bail by ensuring these interests are considered without disregarding personal liberty altogether. It is for this reason that bail is not simply about securing the personal appearance of an accused, but involves courts looking at the allegations as well.
By taking away anticipatory bail outright or by shackling the right to bail, in cases of certain crimes, what the legislature really does is strike a blow to this belief by sending a clear message that judicial discretion cannot be trusted to make the right decision. The already wide berth given to police interests in matters of bail is expanded even further, reducing the role of courts from independent arbiters to requiring that they defer to the executive’s interests and consign a person to jail on the strength of allegations, not proof. The result is a legal system in which, somehow, the judiciary is further weakened in discharging its basic role of securing personal liberty.
Thus, even as the State of Uttar Pradesh reintroduced Section 438, this is not a break with the past. Rather, it carries forward the legacy of the original deletion by the 1976 Act, a legacy which has been gradually, and almost unquestioningly, embraced across the country with the passage of time.
[The author is a criminal lawyer based in New Delhi. This article first appeared on his blog, ‘The Proof of Guilt’.]