An Alarming Recall Order by the Indian Supreme Court: Should State Convenience Override the Rights of the Accused?

by | Jun 1, 2023

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About Dishaa Dand

Dishaa Dand is a second-year student at the Gujarat National Law University in India. She has a keen interest in the intersection of law and society, specifically in the field of human rights.

In Ritu Chhabaria vs Union of India, a two-judge bench of the Indian Supreme Court recently declared that the practice of filing incomplete criminal investigation reports would not extinguish the default bail rights of persons accused of criminal offences. The judgment thereby strengthened the legal provisions on ‘default bail’, to which a detained person is entitled if the investigating authorities fail to file their investigation report within a particular time. In response, the State requested that the Supreme Court recall the judgment, claiming that such restrictions on investigating authorities would cause inconvenience. Surprisingly, the Court recalled its own decision to be heard by a larger bench, on the mere insistence of State Counsel. This move by the Court raises several questions as to potential violations of the fundamental rights of the accused.

Section 167(2) of the Code of Criminal Procedure 1973 (‘CrPC’) is the statutory provision codifying the law known as ‘statutory’ or ‘default’ bail. Entitlement to this kind of bail accrues as an absolute right to the accused when investigating authorities fail to complete investigations within a specified time. This ensures that people accused of criminal offences are not arbitrarily detained by the State for unreasonable periods of time. It derives its ‘deafultness’ from the fact that it arises as an indispensable right of the accused irrespective of the merits of the case and the offence of which one is accused.

The idea behind default bail was to prevent abuses of power and process by investigating authorities. It is difficult, if not impossible, to take power away from the hands of those who wield it. It was found that – in a bid to circumvent this restriction on their powers, and denying the right of default bail to the accused – investigating authorities routinely filed incomplete chargesheets within the specified period.

Ritu Chhabaria vs Union of India was a writ petition under Article 32 of the Constitution of India which brought this practice to light. The two-judge bench ruled that the filing of incomplete chargesheets would not extinguish the right to default bail guaranteed under section 167(2) CrPC. Such a right can only be invalidated if the investigation is completed within a 60/90-day period (the relevant deadline depending on the category of offence alleged). The Court reiterated that the right to default bail is a fundamental right, flowing directly from the right to life and personal liberty guaranteed under Article 21 of the Constitution.

While the judgment is commendable, the events that unfolded after it are concerning. On 1st May 2023, the Solicitor General of India mentioned recall of the judgment before a bench comprising of the Chief Justice of India. Upon such mention, the Chief Justice ordered the matter to be listed before a 3-judge bench for a hearing on the 4th May 2023. This order also stipulated that all default bail applications filed before any court based on the Ritu Chhabaria judgment would be deferred till beyond 4th May 2023. On 12th May, 2023 the Supreme Court clarified that the lower courts could still grant default bail, but such decisions had to be independent of, and could not rely on, the Ritu Chhabaria judgment.

This sequence of events was triggered simply by the State Counsel’s insistence that ‘complete investigation’ within 60/90 days places unnecessary workload on investigative agencies. To order the recall of a judgment on these grounds is alarming for various reasons. Firstly, can a fundamental right, supposedly flowing directly from Article 21 of the Indian Constitution, be discarded in the interest of a slightly reduced burden on, or greater convenience to, investigating authorities? Secondly, granting the State power to detain individuals for long periods of time carries the inherent risk of being exploited as a mechanism to suppress dissent in any form. Finally, the Court acting in a manner that aids the State in encroaching upon fundamental liberties sets a dangerous precedent, akin to the beginnings of an authoritarian regime.

In the grander scheme of criminal justice, procedural propriety may seem insignificant. However, it serves as a crucial safety net, protecting the rights of the accused and acting as a restraint on law enforcing authorities. Default bail under section 167(2) CrPC is often deemed a sanctuary for ‘criminals’ (although technically, it applies to those accused of criminal offences). It has very rarely been viewed favorably by courts, police or the State. But it is a right that cannot simply be sacrificed for convenience. Any time a legal right meets this fate, a precedent is set for the loss of other rights in the same manner, ultimately paving the way for unchecked State power and investigative agencies which cannot be reproached, even when they abuse the process of law.

Want to read more?

Read: Juvenile Bail Provision in India: The Urgent Need for Legislative Checks and Balances

Read: The Supreme Court of India Reads Article 21 Protection into the Stringent UAPA Bail Jurisprudence

Read:  Hong Kong’s highest court sets new test for bail under the National Security Law

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