The Supreme Court on Wednesday refused to entertain a petition filed by fourteen political parties alleging that central investigating agencies such as the Directorate of Enforcement (ED) and the Central Bureau of Investigation (CBI) are being weaponised by the Union Government to clamp down on dissent by arresting opposition leaders.
A division bench of Chief Justice DY Chandrachud and Justice JB Pardiwala expressed disinclination to entertain the petition by saying that it cannot issue general directions without a factual context. The bench said that it can intervene only in an individual case. The bench further said that political leaders cannot claim a higher immunity than ordinary citizens and hence a special set of guidelines cannot be issued for them.
The petitioners' counsel Senior Advocate Dr.Abhishek Manu Singhvi, after seeing the bench not getting persuaded by his arguments, sought to withdraw the petition.
At the outset, Singhvi took the court through certain statistics to argue that centrally controlled investigating agencies are being increasingly deployed in a 'selective and targeted' manner against political opponents. The answer to this question, the senior counsel said, was in proper guidelines for arrest and remand as well as guidelines for bail.
For arrest and remand, the petitioners sought the application of the triple test (determination as to whether a person is a flight risk, whether there is a reasonable apprehension of the tampering of evidence, or the influencing/intimidation of witnesses) by police officers or ED officials and courts alike for the arrest of persons in any cognizable offences except those involving serious bodily violence. It was argued that where these conditions were not satisfied, alternatives like interrogation at fixed hours or, at most, house arrest ought to be used to meet the demands of investigation. Likewise, with respect to bail, the petitioners sought that the principle of ‘bail as rule, jail as exception’ be followed by all courts throughout, especially in cases where non-violent offences are alleged, and that bail be denied only where the aforementioned triple-test is satisfied.
In order to substantiate the demands, the petition has highlighted that the action rate on raids i.e., complaints filed pursuant to raids has reduced from 93 per cent in 2005-2014 to 29 per cent in 2014-2022. Further, it has been claimed that only 23 convictions under the Prevention of Money Laundering Act, 2002 have been secured as of now, even as the number of cases registered by the ED under the PMLA has risen exponentially (from 209 in 2013-14 FY to 981 in 2020-21, and 1,180 in 2021-22). Finally, the petition says that while between 2004-14, of the 72 political leaders investigated by the CBI, 43 (under 60 per cent) were from the opposition of the time, now, this same figure has risen to over 95 per cent. The same pattern is reflected in ED’s investigations as well, with the proportion of opposition leaders from the total number of politicians investigated rising from 54 per cent (before 2014) to 95 per cent (after 2014). After outlining the said figures, the senior counsel argued:
"Clearly there is a skewed application of CBI and ED jurisdictions. This leads to a skewed non-level and uneven democratic playing field. This is plain as day because only the opposition is fighting these cases. We do not want any pending case in India to be affected, or to interfere in any ongoing investigation, but only for there to be guidelines. This is because the skewed application of law has a chilling effect on our democracy."
"Are you saying that because of these statistics, there should be immunity from investigation?" Chief Justice Chandrachud asked. As citizens, CJI said, politicians are all amenable to the same law.
Political leaders can't claim higher immunity
The Chief Justice further added, "The problem with this petition is that you are trying to extrapolate statistics into guidelines, where the statistics only apply to politicians. But, we cannot have guidelines exclusively for politicians." He added, "Political leaders stand absolutely on the same standing as the citizens of the country. They do not claim a higher immunity. How can there be a different set of procedure for them?".
Chief Justice Chandrachud also said that the top court could not lay down abstract guidelines. "Come back with one or more cases, where there has been a specific instance or instances of the agencies being used to selectively target leaders. On the basis of the law that we have laid down, we can evolve general principles with respect to the facts of the case," he firmly said. It would be 'dangerous', Chief Justice Chandrachud said, to attempt to formulate general guidelines in the absence of such specific facts.
"Mass arrests is a threat to democracy. It is a sign of authoritarianism. Process becomes the punishment", Singhvi said.
"When you say that space for opposition has shrunk, the remedy is in that space, the political space. Not the Court", CJI replied.
The political parties forming the Petitioners are Indian National Congress, DMK, RJD, BRS, Trinamool Congress, AAP, NCP, Shiv Sena (UBT), JMM, JD(U), CPI(M), CPI, Samajwadi Party, and J&K National Conference. As per the petition, these parties together represent 45.19% of the votes cast in the last State/UT Assembly Elections, and 42.5% of the votes cast in the 2019 General Elections, and holding power in 11 States/UTs.
