Rights cherished by citizens are fundamental, not restrictions: SC

The rights which are cherished "deeply" by citizens are "fundamental", not the "restrictions", the Supreme Court observed Wednesday while laying down criteria for granting anticipatory bail to persons apprehending threat of arrest.

The freedom movement has shown how the likelihood of arbitrary arrest, indefinite detention and the lack of safeguards played an important role in rallying the people to demand independence, it said.

Justice S Ravindra Bhat, who was part of a five judge Constitution bench headed by Justice Arun Mishra and, made these observations in a separate but concurring 73-page verdict on the issue of anticipatory bail. The bench also comprised Justices Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat

The verdict held that "the protection granted to a person under Section 438 (pre-arrest bail) CrPC should not invariably be limited to a fixed period and it should inure in favour of the accused without any restriction on time".

It also said that though the courts may impose conditions while granting pre-arrest bails, but the duration of such a relief can continue till the end of the trial.

Justice Bhat emphasised on the rights of the citizens and said that they are fundamental and hence get primacy over restrictions and quoted Joseph Story, jurist and US Supreme Court judge.

He said: "It would be useful to remind oneself that the rights which the citizens cherish deeply, are fundamental- it is not the restrictions that are fundamental. Joseph Story, the great jurist and US Supreme Court judge, remarked that 'personal security and private property rest entirely upon the wisdom, the stability, and the integrity of the courts of justice'."

Referring to Indian history he said: "Witness the Rowlatt Act, the nationwide protests against it, the Jallianwalla Bagh massacre and several other incidents, where the general public were exercising their right to protest but were brutally suppressed and eventually jailed for long.

"The spectre of arbitrary and heavy-handed arrests: too often, to harass and humiliate citizens, and oftentimes, at the interest of powerful individuals (and not to further any meaningful investigation into offences) led to the enactment of Section 438. Despite several Law commission reports and recommendations of several committees and commissions, arbitrary and groundless arrests continue as a pervasive phenomenon".

Justice Bhat said the provision of pre-arrest bail was inserted in the statute 46 years ago and it has "stood the test of time".

Parliament has not thought it appropriate to curtail the power or discretion of the courts, in granting pre-arrest or anticipatory bail, especially regarding the duration, or till charge sheet is filed, or in serious crimes, the verdict said.

"Therefore, it would not be in the larger interests of society if the court, by judicial interpretation, limits the exercise of that power: the danger of such an exercise would be that in fractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years," Justice Bhat wrote.