Kerala Lawyers Protest Supreme Court Case on High Courts’ Anticipatory Bail Powers

A Rare Collective Protest Over Judicial Jurisdiction

On October 16, 2025, lawyers practicing before the Kerala High Court staged a rare collective protest, passing a formal resolution objecting to an ongoing case before the Supreme Court that questions whether High Courts can entertain anticipatory bail applications beyond the jurisdiction of the Sessions Courts.

The resolution—adopted by the Kerala High Court Advocates’ Association (KHCAA)—asserted that the Union Government’s position in the pending case amounted to an encroachment on the constitutional and statutory powers of the High Courts under Section 438 of the Code of Criminal Procedure (CrPC).

This episode has reignited debate over the limits of judicial authority, the independence of High Courts, and the Central Government’s growing involvement in procedural criminal jurisprudence.

What Triggered the Protest

The KHCAA’s resolution came in response to a case currently before the Supreme Court where the Union of India has questioned whether High Courts should exercise jurisdiction to grant anticipatory bail when the alleged offence is registered outside their territorial jurisdiction.

At issue is the interpretation of Section 438 CrPC, which allows a person who apprehends arrest to apply for anticipatory bail. Traditionally, the provision has been interpreted broadly by High Courts, allowing them to entertain such pleas even when the FIR is registered in another district or, in some cases, another state—provided there is a reasonable apprehension of arrest.

However, the Union’s contention before the apex court is that High Courts should not issue blanket or extra-territorial anticipatory bail orders, arguing that this undermines the territorial scheme of the criminal procedure framework.

The Kerala High Court Bar, in its resolution, characterized this argument as an “attempt to dilute the independence and inherent jurisdiction of constitutional courts.”

Why Lawyers Are Concerned

For many practitioners, the stakes extend far beyond Kerala. The Bar’s resolution reflects anxiety that the Supreme Court’s interpretation could fundamentally narrow the scope of judicial protection against arrest, which has long been viewed as an essential safeguard of personal liberty under Article 21.

In their statement, the KHCAA emphasized that:

• High Courts derive power from both the Constitution and statute. Their authority to grant bail is not subordinate to executive interpretation.

• Restricting anticipatory bail jurisdiction could lead to hardship, especially for citizens facing harassment or politically motivated cases in other states.

• The Union’s position risks creating a fragmented and inconsistent bail system, weakening access to justice and increasing procedural complexity.

The resolution urged the Supreme Court to respect the federal judicial balance, warning that any restriction on High Court jurisdiction would “erode public faith in the judiciary as the first protector of liberty.”

The Legal Question Before the Supreme Court

At the heart of the pending case lies a technical but crucial question:

Can a High Court entertain an application for anticipatory bail when the FIR has been lodged outside its territorial limits?

Currently, different High Courts across India have taken divergent positions on this issue.

• Some High Courts, including Kerala and Delhi, have taken a liberal view, holding that if the apprehension of arrest exists within their jurisdiction, the High Court can exercise power under Section 438 CrPC.

• Others, like the Madhya Pradesh and Rajasthan High Courts, have held that only the courts within the territorial jurisdiction of the FIR can grant such relief.

The Supreme Court’s eventual ruling is expected to harmonize these conflicting interpretations, but the Union’s active participation has raised concerns about executive influence over procedural safeguards.

Anticipatory Bail: A Constitutional Safeguard in Practice

The concept of anticipatory bail—introduced through the 1973 Code of Criminal Procedure—was conceived as a bulwark against arbitrary arrest and misuse of police power.

The Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab (1980) famously held that:

“Personal liberty is too precious a value of our constitutional system to be lightly interfered with… Section 438 must be interpreted liberally to protect the individual from humiliation and unjustified detention.”

Since then, anticipatory bail has evolved as an essential procedural right. The Court’s own jurisprudence has repeatedly stressed judicial discretion over territorial rigidity.

Lawyers fear that any curtailment of this principle could shift the balance of criminal justice toward the State, especially in politically sensitive or cross-jurisdictional cases.

Federalism and Judicial Independence: The Deeper Undercurrent

The Kerala lawyers’ protest is not merely procedural—it reflects a larger institutional concern about judicial federalism.

High Courts are constitutional courts with plenary powers under Articles 226 and 227, enabling them to protect fundamental rights and supervise criminal proceedings within their states. If their authority to grant anticipatory bail is curtailed, it could:

• Centralize judicial power in the Supreme Court, overburdening it with liberty petitions.

• Limit local remedies, forcing citizens to approach distant jurisdictions for protection.

• Undermine the federal structure, which envisions High Courts as co-equal constitutional forums in protecting liberty.

This explains why the KHCAA termed the Union’s stand as an “erosion of High Court dignity.” For many lawyers, it also revives old tensions about judicial hierarchy versus judicial autonomy.

Judicial Overreach or Legitimate Clarification?

Supporters of the Union’s position argue that the Supreme Court’s review is not interference but clarification—a necessary step to bring uniformity to a fragmented bail regime. They point out that blanket anticipatory bail orders can be misused to stall investigations in legitimate cases, especially those spanning multiple states.

Yet critics argue that this reasoning overlooks the constitutional role of bail jurisprudence: to prevent wrongful arrest, not to pre-judge innocence or guilt. They maintain that procedural inconvenience cannot justify restricting liberty.

What Happens Next

The Supreme Court’s eventual verdict will determine the future shape of anticipatory bail jurisprudence in India. If it accepts the Union’s restrictive view, High Courts may lose their long-recognized flexibility to grant protection beyond narrow territorial lines.

Legal observers expect the Court to:

• Clarify the territorial scope of anticipatory bail under Section 438 CrPC.

• Define when cross-jurisdictional relief can be granted.

• Possibly issue procedural guidelines to prevent misuse without diluting High Court autonomy.

Until then, bar associations across the country are likely to monitor the case closely, given its impact on liberty jurisprudence.

Broader Implications for Criminal Justice

This episode highlights how procedural doctrines—often seen as technical—carry profound implications for fundamental rights. The Kerala protest signals that the legal community views anticipatory bail as a cornerstone of individual freedom, not a mere procedural tool.

If the Court sides with a narrower reading of Section 438, it could set a precedent that:

• Restricts pre-arrest protections in interstate cases.

• Raises barriers for citizens seeking urgent relief.

• Reinforces executive power in early-stage criminal proceedings.

For lawyers and students alike, this controversy serves as a live example of how constitutional design and criminal procedure intersect in practice—where technical jurisdictional questions ultimately decide who sleeps in custody and who remains free.

Conclusion

The Kerala High Court Bar’s protest captures a moment of institutional friction within India’s judicial architecture—between the apex court’s unifying mandate and the High Courts’ constitutional autonomy.

At stake is not merely the scope of Section 438 CrPC, but a larger principle: whether liberty is best protected by central oversight or by distributed judicial vigilance across High Courts.

As one senior advocate remarked during the protest, “The High Courts have been the first refuge of citizens facing arrest. Restricting that power is not judicial discipline—it’s judicial distancing.”