TS Sneha

In the following article, the objective of the author is to analyse the limitation on the period of anticipatory bail through the Sushila Aggarwal vs State(NCT of Delhi) and Another, where RavindraBhat gave his opinion regarding the validity of judicial scrutiny and interpretation. The Supreme Court, after observations, concluded that the cases of arbitrary arrests on undefined grounds have increased. The judgement was delivered by a bench containing Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah, also Justice RavindraBhat.

Citizen’s Rights Are Fundamental, Not Restricted

Each time fundamental rights are discussed in cases or in general, the question arises whether we can place restrictions on it or not, and generally, we cannot. Innumerable cases have talked about the public rights of people and its violation and not once has it ever been decided that it can be unless under reasonable circumstances and in layman’s language, the restrictions come into play when the person whose fundamental right is at discretion is a criminal or a potential criminal. When the Bill of Rights was passed in the western countries, there were restrictions placed later on in the successive cases.[1] Even convicts accused of having committed an offence has fundamental rights they can’t be denied.

Although there is some hesitation in claiming that fundamental rights are absolute, citizen’s rights are fundamental, and there is no denying that. Any reasonable restriction can be placed on citizen’s fundamental right since they are not absolute, and restraint should be in favour of the significant interest of the society.[2] Fundamental rights from Article 14-32 guarantees a citizen’s all the first civil and constitutional right that they require and Article 32, called as the “Heart and Soul of the Constitution” by B.R.Ambedkar aids citizens in claiming the violation of their fundamental rights against the State by issuing them writs. The test of “reasonable classification” has been laid down in Anwar Ali case[3] and the case has come to the conclusion that under reasonable circumstances, restrictions can be placed and what a reasonable restriction is, will depend on the matter and vary from one to another. Restrictions on Fundamental Rights have been placed on the grounds of peace, order and morality of the State, its decency, security and also on the contempt of Court. As long as Fundamental Rights are a part of the Constitution, it would be wrong to call them unconditional, but citizen’s rights are fundamental and the primary duty of the State s to safeguard it. The Basic Structure Doctrine has been discussed in various cases from KeshavanandaBharati[4] to Minerva Mills[5], and the significance of these cases is that they say violation of fundamental rights of people will lead to a breach of Basic Structure of the Constitution[6], and it is the very sanctity of the Constitution that its sanctity is maintained. The term “anticipatory bail” used in Section 43 of the CrPC has been called a misnomer. An SPL was filed before the court on the difference of views concerning the granting of anticipatory bail, and it is an order issued by the court to release a person only if the person is arrested. Another aspect that is upheld by the public is that a person granted bail will not act within limits and hence reasonable restrictions need to place on him.

Rights which the citizens cherish deeply, are fundamental- it is not the restrictions that are fundamental, reminded Justice S. RavindraBhat while concluding his judgement on the issue whether Anticipatory Bail[7] Protection should be for a limited period.[8] The Parliament does not want to curtail the power of the Courts in case of serious offences, and the Courts feel like the security of the people can be protected only if the judiciary exercises its functions, however, the court can lay down restrictions. The verdict in Sushila Agarwal and Others vs.State(NCT of Delhi) and others 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”[9]. Indian History showed the massive outbreak of protests when there was a restriction placed on the public rights of the citizens. Justice Bhat, in his statement, records that the separation of powers is upheld, and judicial scrutiny is followed correctly to avoid an unnecessary tussle between the Judiciary and the Parliament and also the people and the government.  Section 438 of the Criminal Procedure Code, 1973[10] talks about appeals lying to the High Court and Supreme Court under Articles 226 and 32[11] of the Indian Constitution and also directs for the grant of bail to person apprehending arrest. The issue before the Court was whether the protection granted to a person under the provision of anticipatory bail is limited to the fixed period so as the person can seek regular bail while surrendering before the trial court. Some of the key features of the case, in addition to the orders of the Court, are as follows: The bail is granted to the citizen under reasonable circumstances, and the person will be summoned to appear before the court for trial. The anticipatory bail granted to the accused shall last for a period a the discretion of the court and is distinguished explicitly from an ordinary bail in the sense that anticipatory bail can be granted only for the anticipation of arrest.

In conclusion, a limitation on the period of anticipatory bail restricts the citizen’s personal liberty and freedom, and hence, as observed by the Justice, the duration of anticipatory bail can extend and is up to the discretion of the Court. The Court decided that the rights cherished by citizens ae fundamental and hence the law aims to protect the arrested during his restrictive period, and the police can carry on with further investigations of the charges imposed against the accused.


Sushila Aggarwal and Others vsState(NCT of Delhi) and Another(29 January 2020), SPECIAL LEAVE PETITION (CRIMINAL) NOS.7281­7282/2017

[1]Rust v. Sullivan, 59 U.S.L.W. 4451.

Rust v. Sullivan, 500 U.S. 173, was a case in the United States Supreme Court that upheld Department of Health and Human Services regulations prohibiting employees in federally funded family-planning facilities from counseling a patient on abortion.

[2]Mohd.HanifQuareshi& Others vs The State Of Bihar, 1958 AIR 731

[3]The State Of West Bengal vs Anwar Ali Sarkar, 1952 SCR 284.

The issue raised by the petitioner was constitutional validity of West Bengal Special Courts Act (X of 1950) which was entitled as “An Act to provide for the speedier trial of certain offences”.

[4]KeshavandaBharati v. State of Kerala, (1973) 4 SCC 225.

[5]Minerva Mills v. Union of India, AIR 1980 SC 1789.

Minerva Mills Ltd. and Ors. v. Union Of India and Ors. is a landmark decision of the Supreme Court of India that applied and evolved the basic structure doctrine of the Constitution of India. In the Minerva Mills case, the Supreme Court provided key clarifications on the interpretation of the basic structure doctrine.

[6]Following the case of KeshavanandaBharati, subsequent cases in the following years laid down the provisions regarding the Basic Structure of the Constitution but no definition of Basic Structure has been laid down yet.

[7]The concept of Anticipatory Bail comes into place when the accused may rightfully fear arrest in cases of cognizable offences. Bail is a legal relief that a person may be entitled to in order to get temporary freedom until his case is disposed of.


[9]Anticipatory Bail Should Not Be Limited To A Fixed Period ….

[10]Direction for grant of bail to person apprehending arrest.

[11]Writs issued by the High Court and the Supreme Court with respect to the violation of the fundamental rights, claimable against the State

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