On Wednesday, the Supreme Court (SC) rejected a plea by 14 opposition parties, led by the Congress, citing “arbitrary use” of government investigative agencies like the CBI and the Enforcement Directorate (ED) against opposition leaders and requesting new arrest, remand, and bail standards.

Image Source – The Economic Times

The petition stated that the Union Government is using the ED and CBI to arrest opposition leaders to stifle dissent. SC stated politicians cannot have distinct guidelines. The division bench of Chief Justice DY Chandrachud and Justice JB Pardiwala declined to hear the plea because it cannot provide broad directives without a factual background. The bench only intervenes in particular cases. The bench said that political leaders cannot claim more immunity than regular individuals, hence they cannot have special guidelines.

Singhvi began by presenting facts to show that centrally controlled investigative agencies are increasingly targeting political opponents. The senior lawyer stated adequate arrest, detention, and bail standards answered this question.

The petitioners requested that police, ED officials, and courts apply the triple test (determination of whether a person is a flight risk, whether there is a reasonable apprehension of the tampering of evidence, or the influencing/intimidation of witnesses) to arrest and remand persons for any cognizable offence except serious bodily violence. If these prerequisites were not met, fixed-hour interrogation or home arrest should be employed to suit inquiry needs. The petitioners also requested that all courts follow the notion of “bail as norm, jail as exception,” especially in non-violent situations, and that bail be rejected only if the triple-test is met.

The petition claims that the action rate on raids—complaints filed after raids—has dropped from 93% in 2005-2014 to 29% in 2014-2022. Despite the ED’s exponential increase in PMLA cases, just 23 convictions have been obtained (from 209 in 2013-14 FY to 981 in 2020-21, and 1,180 in 2021-22). Lastly, the petition claims that between 2004 and 2014, 43 of the 72 political figures probed by the CBI were from the opposition, but currently over 95% are. iED’s investigations show the similar trajectory, with opposition leaders climbing from 54% (before 2014) to 95% of lawmakers probed (after 2014).

The senior lawyer stated that CBI and ED jurisdictions are distorted, after presenting the numbers. This makes democracy unequal. Only the opposition is defending these cases. We want guidelines, not to prejudice any Indian case or probe. Skewed law enforcement inhibits democracy. The threat of mass arrests to democracy is a very tangible and all-pervading concern. It is an indication of autocracy. The process is the penalty.

SC rejects plea for special arrest criteria for politicians, emphasizes equality before the law

A bench led by Chief Justice DY Chandrachud and Justice J.B. Pardiwala stated that political figures do not have immunity greater than an ordinary citizen and are on the same footing as civilians, asking how there can be no arrest until the triple test is satisfied. Politicians wanted new arrest and remand rules.

Prominent counsel Abhishek Manu Singhvi attempted hard to persuade the court to set arrest criteria for opposition leaders. Nonetheless, the panel emphasised that politicians are citizens and cannot enjoy any superior protection, and offended politicians can seek recourse in the relevant court.

The bench informed Singhvi that when political parties say that the CBI and ED charges against their leaders chill the Opposition, the remedy is in politics, not courts.

The difficulty with this petition was that Singhvi was  trying to extend data into rules, when the numbers only pertain to politicians. Guidelines cannot be limited to politicians. Politicians are equal to citizens. They claim no superiority. We can establish case-specific general principles using our legislation. Without such specifics, generic rules are harmful.

Singhvi withdrew the case after a comprehensive hearing, which the judge accepted.

She's a freelance legal consultant, specialising in economic offences. She has harboured a very soft spot for the world of journalism and content writing for as long as she can remember, and has 5 published literary pieces in reputed magazines and journals, accessible easily on the internet. She's an avid athlete, loves to sing and has had an extensive debating career throughout her 5 years of law school. She hopes she can make a niche for herself in the media world, too.

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