On Wednesday, April 5, the Supreme Court refused to entertain a petition brought by fourteen political parties alleging that the central government is using central investigative agencies such as the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI) in a bid to quell dissent by arresting opposition leaders.
A division bench comprising Chief Justice DY Chandrachud and Justice JB Pardiwala refused to consider the plea, stating that it was impossible to issue general directions without regard to specific factual context. The bench stated that it could only get involved in a specific case. The bench added that politicians could not assert a higher level of immunity than ordinary citizens. The opposition parties had to withdraw their plea as the SC bench refused to entertain their plea.
Senior Lawyer Abhishek Manu Singhvi argued before the court that more “selective and targeted” use of centrally controlled investigating agencies is being made to stifle political opposition and undermine the fundamental premises of representative democracy. The senior advocate claimed that adequate bail guidelines of two sorts: pre and post-arrest.
Guidelines sought for arrest and remand
The petitioners sought that the triple test be applied by police officers, ED officials, and courts alike for the arrest of individuals in any cognizable offences other than those involving significant bodily violence.
If these requirements are not met, alternatives such as house arrest or, at most, scheduled interrogations can be used to satisfy the requirements of the investigation.
Guidelines sought for bail
The petitioner requested that the courts adhere to the principle “bail as rule, jail as exception,” particularly in situations involving non-violent offences. They sought that only in cases where the triple test was not fulfilled should bail be denied.
The petitioners asked for directions to harmonize special legislation like the PMLA, which have strict bail conditions, with Article 21 of the Constitution.
Unless the prerequisites under the triple test are not met, the accused may be released on bail even under special provisions when it appears that the trial will not be finished within six months.
Statistics presented by the petitioners in support of their demands
The petition included certain statistics to support the demands. Raid action rate as measured by complaints submitted after raids decreased from 93% in 2005-2014 to 29% in 2014-2022;
Despite an increase in the number of cases recorded by the ED from 209 in 2013–14 to 981 in 2020–21 and 1180 in 2021–22, only 23 convictions have been obtained to date under the Prevention of Money Laundering Act (PMLA).
43 (less than 60%) of the 72 political figures the CBI investigated between 2004 and 2014 belonged to the opposition. Currently, this figure exceeds 95%, Singhvi stated.
The proportion of opposition leaders among all politicians under investigation by the ED increased from 54% before 2014 to 95% after 2014, Singhvi added in his argument.
‘SC cannot issue special guidelines just for politicians’
To this, CJI Chandrachud stated that although this petition is focused on politicians, they are not entitled to any immunity adding that when cases of financial scams come up how can it be said that they cannot be arrested.
“Even though this petition focuses on political leaders, they don’t enjoy any immunity…day in and day out we get these cases of financial scams. How can we say that they cannot be arrested,” the CJI said.
CJI: Even though this petition focuses on political leaders, they don’t enjoy any immunity.. day in and day out we get these cases of financial scams.. How can we say that they cannot be arrested.
— LawBeat (@LawBeatInd) April 5, 2023
CJI Chandrachud further added, “The problem with this petition is that you are trying to extrapolate statistics into guidelines, where the statistic only apply to politicians.
CJI: The difficulty in your petition is you are trying to extrapolate statistics into binding guidelines.. How can you make them only for politicians..#EnforcementDirectorate #CBI
— LawBeat (@LawBeatInd) April 5, 2023
Ordinary citizens and political leaders share an equal standing in the country, CJI Chandrachud continued. According to the CJI, political leaders cannot claim a higher identity.
The CJI questioned, “How can there be a different set of procedures for them?
The Chief Justice told the petitioners that they can come to the Supreme Court with individual cases or a group of individuals, however, the Supreme Court cannot lay guidelines in an abstract manner as it would be ‘dangerous’ in absence of specific facts. Following this, Advocate Singhvi requested to withdraw the plea, which was thus dismissed as withdrawn.
Singhvi: Give me liberty to withdraw, and come back…
— LawBeat (@LawBeatInd) April 5, 2023
CJI: The petition is dismissed as withdrawn.#CBI #EnforcementDirectorate #SupremeCourtOfIndia
The petition was submitted by the Indian National Congress (INC), Dravida Munnetra Kazhagam (DMK), Rashtriya Janata Dal (RJD), Bharat Rasthra Samithi (BRS), All Indian Trinamool Congress (TMC), Aam Aadmi Party (AAP), Nationalist Congress Party (NCP), Shiv Sena (UBT), JMM, JD(U), Communist Party of India (Marxist), CPI, Samajwadi Party, J&K National Conference. Advocate Shadan Farasat had drawn and filed the petition on behalf of the India National Congress.
