Crime and time: On election-time incarceration  

Election-time incarceration adversely affects democratic spirit 

Updated - May 16, 2024 12:43 pm IST

Published - May 16, 2024 12:20 am IST

Any inconsistency in judicial decisions is bound to be seen as unequal application of rules. On the principle of parity, former Jharkhand Chief Minister Hemant Soren, who leads the Jharkhand Mukti Morcha, is arguably entitled to interim bail to enable him to campaign in his home State for the next phases of the general election, from May 20. Mr. Soren was arrested on January 31. It was only last week that the Supreme Court of India underscored the importance of the general election to grant bail to Delhi Chief Minister Arvind Kejriwal up to the end of the polls. Although the opinion was based on “the peculiarities of the person in question and the surrounding circumstances”, a principle did emerge from that ruling that key leaders could be allowed to campaign in the interest of electoral democracy. However, the Court chose the position that it first needs to hear the other side, the Enforcement Directorate in this case. Even though it favoured a hearing in the week beginning May 20, it agreed to an earlier date, May 17. It is indeed a legal requirement that any order of bail can be given only after hearing the prosecution’s objections. In Mr. Kejriwal’s case, the Court heard and rejected the argument that freeing a political leader solely for the purpose of canvassing votes during an election will amount to privileging the political class above other categories of people arrested for similar offences.

The Jharkhand High Court did not deliver judgment on the petition challenging Mr. Soren’s arrest for two months, resulting in a delay in his approaching the Supreme Court. Ultimately, it passed an order dismissing his plea on May 3, having reserved its verdict on February 28. It is true that no two cases are comparable. While the Delhi Chief Minister is facing the charge of bribery in exchange for adopting an excise policy favourable to some manufacturers, Mr. Soren is accused of laundering the proceeds of crime in the illegal sale of a parcel of land to acquire property in Ranchi. With the prosecution depending mainly on approvers’ statements against Mr. Kejriwal, and the agency banking on documentary evidence against Mr. Soren, there may be differences in the respective merits of their cases. The stringent provisions for bail in the Prevention of Money Laundering Act have the unfortunate effect of making courts consider the overall merits of a case at the bail stage itself. It is unfortunate that the relatively simple act of releasing the accused against bail bonds, with attendant conditions to safeguard evidence and prevent them from fleeing justice, has become politically sensitive. Election-time incarceration, which renders the playing field disadvantageous to the affected parties, adversely affects the democratic spirit.

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