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PART-I Protection of Personal Liberty and Law of Bail

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PART-I Protection of Personal Liberty and Law of Bail PART-I Protection of Personal Liberty and Law of Bail S.S. Upadhyay Former District & Sessions Judge/ Former Addl. Director (Training) Institute of Judicial Training & Research, UP, Lucknow. Member, Governing Body, Chandigarh Judicial Academy, Chandigarh. Former Legal Advisor to Governor Raj Bhawan, Uttar Pradesh, Lucknow Mobile : 9453048988 E-mail : [email protected] Website: lawhelpline.in 1.1 Philosophy behind personal liberty and law of bails : The personal liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The Society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability form the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly thing which the society disapproves, the legal consenqueces are bound to follow. At that stage, the court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law. See : Neeru Yadav Vs. State of UP, 2015 (88) ACC 624 (SC) (para 16) 1.2 Personal liberty’ as ’human right’ under the universal declaration of human rights by the United Nations on December 10, 1948: Under Article 3 of the Charter of universal declaration of human rights by the United Nations, right to personal liberty of humans has been declared to be the human right. Artice 3 of the said Declaration made by the United Nations on December 10, 1948 reads thus: ” Everyone has the right to life, liberty and security of person.”. 1.3 International Covenant On Civil and Political Rights, 1966 : India is a signatory to the International Covenant On Civil And Political Rights, 1966 and, therefore, Article 21 of the Constitution has to be understood in the light of the International Covenant On Civil And Political Rights, 1966. 1.4 Article 21 of the Constitution of India : No person shall be deprived of his life or personal liberty except according to procedure established by law. 1.5 Meaning of 'Personal Liberty' under Article 21 of the Constitution : The expression 'personal liberty' in Article 21 of the Constitution is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a person and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19 of the Constitution. 'Personal liberty' under Article 21 of the Constitution primarily means freedom from physical restraint of person by incarceration or otherwise. The concept of "right to life and personal liberty" guaranteed under Article 21 of the Constitution includes the "right to live with dignity" and it does not mean mere animal like existence of life. After the Supreme Court's decision rendered in the case of Maneka Gandhi Vs. Union of India, AIR 1978 SC 597(Seven-Judge Bench), Article 21 of the Constitution now protects the right of life and personal liberty of citizens not only from the executive action but from the legislative action also. A person can be deprived of his life and personal liberty if two conditions are complied with, first, there must be a law and secondly, there must be a procedure prescribed by that law provided that the procedure is just, fair and reasonable. See : (i) Vikas Vs. State of Rajasthan, (2014) 3 SCC 321 (ii) District Registrar & Collector Vs. Canara Bank, AIR 2005 SC 186 (iii) Danial Latifi Vs. Union of India, (2001) 7 SCC 740 (iv) Maneka Gandhi Vs. Union of India, AIR 1978 SC 597 (v) A.K. Gopalan Vs. State of Madras, AIR 1950 SC 27 1.6 Universal right of personal liberty enshrined in Section 437 and 439 CrPC : The Universal right of personal liberty emblazened by Article 21 of our Constituion, being fundamental to the very existence of not only to a citizen of India but to every person, cannot be trifled with merely on a presumptive plane. We should also keep in perspective the fact that Parliament has carried out amendments to the pandect comprising Sections 437 & 439 CrPC, and, therefore, predicates on the well established principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some salient features of these provisions are that whilst Section 437CrPC contemplates that a person has to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant, Section 439CrPC empowers the Sessions Court or High Court to grant bail if such a person is in custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification giving the word 'custody' the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in the context of commission of non- bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of 'Committal of cases to the Court of Session' because of a possible hiatus created by the CrPC. See : Sundeep Kumar Bafna Vs. State of Maharashtra, AIR 2014 SC 1745. 1.7 List of rights as to 'right to life' and 'personal liberty' under Article 21: In the case of (i) Unnikrishnan J.P. Vs. State of A.P., AIR 1993 SC 2178, (ii) Aadhar Case reported in AIR 2017 SC 4161 (Eleven-Judge Bench) and in other cases, noted below, the Hon'ble Supreme Court has enumerated following rights as the rights relating to 'right to life' and the 'right to personal liberty' : (1) Right to go abroad : AIR 1967 SC 1836 (2) Right to privacy : AIR 2015 SC 3081 & AIR 2017 SC 4161 (3) Right against solitary confinement : AIR 1978 SC 1675 (4) Right against bar fetters : AIR 1978 SC 1514 (5) Right to legal aid : AIR 1978 SC 1548 (6) Right to speedy trial : AIR 1979 SC 1369 (7) Right against handcuffing : AIR 1980 SC 1535 (8) Right against delayed execution : AIR 2015 SC 715 (9) Right against custodial violence : AIR 1983 SC 378 (10) Right against public hanging : AIR 1986 SC 467 (11) Right to medical assistance : AIR 1989 SC 2039 (12) Right to shelter : AIR 1990 SC 630 (13) Right to sleep : (2012) 5 SCC 1 (14) Right against noise pollution, (2015) 4 SCC 801 (15) Right to healthy environment : 1955 AIR SCW 306 (16) Right to compensation for unlawful arrest : AIR 1983 SC 1086 (17) Right to freedom from torture : AIR 1978 SC 1675 (18) Right to earn livelihood : AIR 1986 SC 180 (19) Certain other rights also as declared by the Hon'ble Supreme Court in it's subsequent decisions. 1.8 Bail is the rule, jail exception : While considering an application for bail either under Section 437 or 439 CrPC, the court should keep in view the principle that grant of bail is the rule and committal to jail an exception. Refusal of bail is a restriction on personal liberty of the individual guaranteed by Article 21 of the Constitution. See : Sanjay Chandra Vs. Central Bureau of Investigation, AIR 2012 SC 830. 1.9 Doctrine of "bail is rule, jail exception" disapproved and modified by the Supreme Court: While cancelling the bail granted to a history sheeter by the Allahabad High Court, modifying the earlier doctrine "bail is rule, jail exception", a Bench of Hon'ble Justice Dipak Misra and Hon'ble Justice Prafulla C. Pant of the Supreme Court has in the first week of October, 2015 ruled that "history-sheeters or habitual offenders are nuisance and terror to society and the courts should be cautious in granting bail to such individuals who are not at par with a first-time offender. Discretionary power of courts to grant bail must be exercised in a judicious manner in case of a habitual offender who should not be enlarged on bail merely on the ground of parity if other accused in the case were granted the relief.
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