Abstract

The power of judicial discretion with regard to granting anticipatory bail under special legislations has always been a centre of legal discourse. It is a convenient approach to apply for bail in anticipation of arrest. But, when a special legislation prohibits the application of anticipatory bail, it creates a lot of controversy as it still remains the blurred area of the criminal justice system. However, transformative constitutionalism in India continues to attract judicial discourse in the face of different experiences of the marginalised and vulnerable sections of the society in fulfilling the constitutional ideals of right to life, liberty, equality and dignity. The scope of judicial interpretation has also been expanded in recent years on the applicability of anticipatory bail with regard to special legislation like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter 1989 Act). Simultaneously, the legislative tendency to override judicial power has also been become a focal point of academic discourse. The debate of whether the judiciary can override any absolute prohibition on the application of anticipatory bail in cases involving caste atrocities and its justification for doing so has been attempted to be resolved. Therefore, in this debate, the pertinent concerns that attract critical evaluation are, inter alia: How was anticipatory bail introduced in India’s criminal justice system? Why was granting anticipatory bail prohibited under the 1989 Act? Whether this prohibition infringes on any citizen’s constitutional rights? What is the justiciability and recent judicial trends to address anticipatory bail under the 1989 Act? The present research paper is devoted to a critical analysis of the aforementioned aspects.

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