They were issued against Richard Gere for a harmless peck on Shilpa Shetty’s cheek during a public function. They have been served on M.F. Husain on the basis of complaints made by bigoted elements that accused him of producing obscene paintings. They have been handed out routinely to various others, often on the basis of private and somewhat frivolous complaints. The Supreme Court was not a day too late in restraining lower courts from issuing non-bailable warrants regarding complaints “on the first instance” in a “casual and mechanical way.” The court laid down three broad guidelines for NBWs. They should be resorted to when summons or bailable warrants do not produce the desired result of bringing a person to court; in cases where the police are unable to trace someone in order to serve him or her with a summons; and when there are grounds for believing that a person could harm someone if not placed in immediate custody. General in nature, the guidelines are far from exhaustive. As the court correctly observed, “there cannot be any straight jacketed formula for issuance of warrants”; an issue of such complexity deserves to be examined on a case-by-case basis. At the same time, the court made it clear that the issue of NBWs should be generally avoided in cases where the accused is not charged with a heinous crime and when he or she is unlikely to tamper with the evidence or evade the process of the law.
The basis for the court’s guidelines is the recognition that the issuance of NBWs involves the deprivation of personal liberty, which it described as “the most precious right of an individual.” The spirit in which it has interpreted NBWs is very similar to that which shaped the law relating to arrest in the landmark case, D.K. Basu v/s State of Bengal. As does arrest, warrants curtail personal freedom; as a result, it is imperative that the discretionary power vested in courts is not exercised in an arbitrary manner. As the Supreme Court observed, such power should be exercised only when it becomes “absolutely imperative to curtail the freedom of an individual.” It is difficult to specify the exact conditions under which it is justified to detain an individual. The element of discretion, present in all legal systems, cannot be fully shut out. The apex court’s guidelines must be interpreted as a warning to lower courts to refrain from issuing NBWs in a reflexive and unthinking manner. The M.F. Husain and the Richard Gere/Shilpa Shetty cases are but the high profile ones. There are a host of others in which NBWs have been issued without due consideration to the right to liberty and the principles that govern the law of arrest and bail.