The Supreme Court agreed on March 24 to hear a joint petition filed by 14 political parties led by the Indian National Congress against the Centre’s “arbitrary use” of Central agencies like the Enforcement Directorate and the Central Bureau of Investigation to arrest and institute criminal proceedings against Opposition leaders who express their fundamental right to dissent or disagree with the Narendra Modi government.
Making an urgent mention before Chief Justice of India D.Y. Chandrachud, senior advocate A.M. Singhvi drew attention to the “alarming rise in the use of coercive criminal processes against Opposition political leaders and other citizens”.
Mr. Singhvi said the petition represents a united front comprising 42% of the political spectrum and includes parties like INC, DMK, RJD, BRS, Trinamool Congress, AAP, NCP, Shiv Sena (UBT), JMM, JD(U), CPI(M), CPI, Samajwadi Party, J&K National Conference), together representing 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.
“They are saying democracy is in peril… We are not trying to affect the existing investigations, but 95% of cases are against Opposition leaders. We are asking for pre arrest guidelines and post arrest guidelines,” Mr. Singhvi submitted.
The Chief Justice listed the case for hearing on April 5..
The petitioners contended that “investigating agencies such as CBI and ED are being increasingly deployed in a selective and targeted manner with a view to completely crush political dissent and upend the fundamental premises of a representative democracy”.
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The petitioners said this was a “shocking and unconstitutional state of affairs”.
“A clear trend of using ED raids as a tool of harassment, with the action rate on raids i.e. complaints filed pursuant to raids reducing from 93% in 2005-2014, to 29% in 2014-2022.
Only 23 convictions under the Prevention of Money Laundering Act, 2002 (PMLA) have been secured as of now, even as the number of cases registered by the ED under the PMLA have risen exponentially (from 209 in 2013-14 to 981 in 2020-21 and 1,180 in 2021-22),” they argued.
They said that, between 2004-14, of the 72 political leaders investigated by the CBI, 43 (under 60%) were from the Opposition of the time. Now, this same figure has risen to over 95%. 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% (before 2014) to 95% (after 2014).
The petition has sought framing of guidelines governing the arrest, remand, and bail of persons in offences (which may or may not be punishable with imprisonment for above seven years) not involving serious bodily harm and thereby obviously excluding homicide, rape, terrorism, etc.
The petitioners suggested a “triple test” to be followed before ordering arrest and remand. These include factors like whether a person is a flight risk or whether there is a reasonable apprehension of the tampering of evidence or of the influencing/intimidation of witnesses.
They also proposed alternatives like interrogation at fixed hours or at most house arrest be used to meet the demands of investigation.
They said courts should follow the principle of ‘bail as rule, jail as exception’, especially in cases where non-violent offences are alleged.
“Where special laws such as PMLA with stringent bail conditions are concerned, the Petitioners seek that such bail provisions be harmonised with Article 21 of the Constitution. As such, therefore, where it appears that the trial is unlikely to complete within 6 months, the accused be released on bail even under the special laws.” they said
