Political leaders cannot claim higher immunity than other citizens, Supreme Court tells Opposition parties

The 14 Opposition parties, who sought a more stringent procedure to be followed before arresting political leaders, withdrew their joint petition after the SC told them they were not entitled to any special immunity

April 05, 2023 04:19 pm | Updated 10:39 pm IST - New Delhi

The Supreme Court of India.

The Supreme Court of India. | Photo Credit: Sushil Kumar Verma

The Supreme Court on Wednesday told a united Opposition of 14 national parties that political leaders stand absolutely on the same footing as any ordinary citizen of India and are not entitled to "higher immunity" from investigation, arrest or prosecution.

The parties withdrew their joint petition claiming that the Centre was arbitrarily using agencies like the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI) to arrest and institute criminal proceedings against Opposition leaders who expressed their fundamental right to dissent or disagree with the Narendra Modi -led government.

Triple test

The parties had suggested a “triple test” to be followed before ordering arrest and remand of political leaders. These included factors like whether a person was a flight risk or whether there was a reasonable apprehension of the tampering of evidence or of the influencing or intimidation of witnesses. They also proposed that alternatives like interrogation at fixed hours or, at most, house arrest be used to meet the demands of investigation. The petition said that courts should follow the principle of ‘bail as rule, jail as exception’, especially in cases involving "non-violent offences".

"A political leader is basically a citizen. As citizens, we are all amenable to the same law. Political leaders do not enjoy an immunity," Chief Justice D.Y. Chandrachud observed during the hearing.

The court referred to instances when a political leader may be accused in a scam involving hard-earned savings or pensions. "Can we say that agencies will not exercise the power of arrest?" the court asked.

‘Opposition targeted’

The petitioners’ advocate Abhishek Singhvi said that the petition represented a united front comprising 42% of the political spectrum, including 14 parties: the Congress, Dravida Munnetra Kazhagam, Rashtriya Janata Dal, Bharat Rashtra Samithi, Trinamool Congress, Aam Aadmi Party, Nationalist Congress Party, Shiv Sena (UBT), Jharkhand Mukti Morcha, Janata Dal (United), Communist Party of India (CPI) and CPI-Marxist, Samajwadi Party, and the Jammu and Kashmir National Conference. Together, they represent 45.19% of the votes cast in the last Assembly elections, and 42.5% of the votes cast in the 2019 general election, and hold power in 11 States and Union Territories.

Mr. Singhvi said that, in the decade between 2004 and 2014, 43 of the 72 political leaders investigated by the CBI, were from the Opposition of the time., just under 60%. Now, this same figure has risen to over 95%. The same pattern is reflected in ED 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).

No seperate laws

The CJI pointed out that the statistics enumerated by the parties applied only to politicians, but the court cannot devise guidelines to apply only to politicians. Any guidelines, especially concerning personal liberty and life, issued by the apex court would apply equally to all citizens alike, and not just the political class.

"That is the difficulty here," Chief Justice Chandrachud said.

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