Supreme Court refuses to admit PIL on central agencies

The apex court declined to entertain a petition filed jointly by 14 Opposition parties over arbitrary arrests of Opposition leaders by CBI and ED

Political leaders do not enjoy a higher legal immunity than common citizens and the law of the land is equally applicable to them, the Supreme Court asserted on Wednesday as it declined to entertain a petition filed jointly by 14 Opposition parties, led by the Congress, complaining against arbitrary arrests of Opposition leaders by the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED), and demanding a fresh set of guidelines governing their arrest, remand, and bail.

Supreme Court.

“Ultimately, a political leader is also a citizen and as a citizen he or she is amenable to the same law. Can we then say there should be immunity from prosecution or there should not be any action against them because there are certain statistics relating to the political leaders? We cannot lay down law in abstract, just on the basis of certain statistics,” said a bench comprising Chief Justice of India Dhananjaya Y Chandrachud and justice JB Pardiwala.

The court was emphatic that it could not issue directives on various aspects of a criminal prosecution based on statistics relating to arrest and other coercive action against the Opposition leaders, or on an argument that the alleged skewed application of the law has shrunk the space of opposition in the country.

“When you say that space for opposition has shrunk, the remedy is in that space, the political space...not the court. You can come to us in an individual case. Come to us with one or more cases together. Our problem is, for the Supreme Court to lay down guidelines in abstract without factual basis will be a very dangerous proposition,” the bench told senior counsel Abhishek Manu Singhvi, who argued for the petition and chose to finally withdraw the plea in the wake of court’s indisposition to entertain it.

Apart from the Congress, the petitioners before the court included the Aam Aadmi Party, All India Trinamool Congress, Rashtriya Janta Dal, Bharat Rashtra Samiti, Dravid Munetra Kazhgam, Nationalist Congress Party, Shiv Sena (Uddhav Balasaheb Thackeray), CPI (M), Jharkhand Mukti Morcha, Janata Dal (United), Samajwadi Party, CPI, and National Conference.

“We bow to the majesty of the Supreme Court. Exploring a judicial coalition on this issue was an option. That does not mean other issues cannot be found to form a legal coalition,” said Trinamool Congress’s parliamentary party leader of Rajya Sabha Derek O’Brien.

“The opposition has a habit of repeatedly accusing the independent agencies of the country. The whole country is watching the exploits of the people of the opposition. All such people who are involved in corruption cases, today they are doing politics of false allegations by coming on one platform. Today the comment of the Supreme Court is going to show the mirror to all of them,” BJP national president Jai Prakash Nadda said in a post on Twitter.

In the petition filed on March 23 through advocate Shadan Farasat, the Opposition parties claimed that a situation of “undeclared emergency” is prevailing within the country under the present government, adding that a clear pattern has emerged of investigative agencies, particularly CBI and ED, being used to target and crush the entire political opposition by jailing them for long periods by invoking draconian laws such as the Prevention of Money Laundering Act (PMLA).

While Singhvi argued that a deliberate and conscious weaponisation of a branch of law may not find answers in an individual case, the court remained firm that it cannot issue guidelines looking at data pertaining only to political leaders nor can it lay down general principles in absence of specific facts.

“The inconsistency of the petition is that the statistics you say pertain only to the politicians. The moment you say skewed application of law against the political leaders of the Opposition, it becomes a petition for the politicians by the politicians,” it told the senior lawyer.

As Singhvi drew the court’s attention to the category of offences and the conditions of bail that the petitioners wanted considered for the issuance of the guidelines, the bench told him that this fell in the realm of legislative action.

“We will be essentially doing what the legislature is to do...To say that there should be no arrest in cases not involving bodily harm or child sex abuse...that is for legislature to do. How do we lay down guidelines that if there is no bodily harm, then you will not arrest? That formulation is extremely broad,” it said.

Singhvi, on his part, emphasised that skewed investigations and actions against the Opposition leaders have led to an unequal democratic field since the Opposition is forced to spend its time and resources fighting such cases .

He said that no person should be arrested in a case punishable with more than 7 years imprisonment but not involving physical injuries if he or she is not a flight risk or there is evidence to show that he can influence witnesses or tamper with evidence (the so-called “triple test” for bail).

But the bench disagreed with Singhvi: “Can we say don’t have regard to the gravity of the offence at all and don’t arrest anyone? And second, once you concede and accept that political leaders are entitled to the same protection but not to a higher immunity, how can you say they will not be arrested until the triple test is failed? You are trying to extrapolate the statistics to ask for legal guidelines but these statistics are only for the politicians who cannot enjoy any higher immunity or relief.”

The bench added that constitutional courts have always come to the rescue in individual cases and political leaders have approached the courts routinely. “ In many of such cases, you have only mentioned in the morning and we have heard and given you relief in the afternoon,” it told Singhvi.

This is the second time in recent years when a group of political parties has come together to move a petition before the top court.

In 2019, around two dozen Opposition parties approached the Supreme Court demanding the random verification of at least 50% Electronic Voting Machines (EVM) using Voter Verifiable Paper Audit Trail (VVPAT) in every assembly segment or constituency. The court directed the election commission to raise the VVPAT-EVM verification from one to five in each assembly segment of a parliamentary constituency (from 0.44% to 2%) but rejected the plea to match the counts to 50%.

The petition filed last month cited examples of Congress leader P Chidambaram, AAP leaders Manish Sisodia and Satyendar Jain, TMC leaders Madan Mitra and Firhad Hakim, and NCP leader Nawab Malik to argue that senior political figures belonging to the Opposition have been arrested and made to suffer prolonged detention.

“In stark contrast, political figures who have crossed over politically to the side of the ruling party at the Centre have mysteriously been given ‘clean chits’ or have seen investigative agencies go slow in proceedings against them,” added the petition, citing BJP leader and Assam chief minister Himanta Biswa Sarma, who was earlier with Congress and had corruption charges were levelled against him at the time.

Another pernicious pattern, the plea contended, was that the moment an accused obtains bail in a CBI case, they are arrested by the ED to ensure the maximum possible custody for the political opponents of the government.

The petition added that between 2004-2014, ED probed 26 political leaders, of whom 14 were from the Opposition (around 53%).

“Whereas from 2014 onwards, of the 121 political leaders under investigation, 115 (over 95%) have been from the Opposition...Between 2004-2014, CBI investigated 72 political leaders, out of whom 43 were from the Opposition (under 60%). Post-2014, of the 124 political leaders investigated by CBI, 118 have been from the Opposition (over 95%),” said the plea, claiming there has a sharp rise in ED and CBI cases against the Opposition leaders since 2014 when the BJP-led NDA came to power.

The petitioners further stated: “Moreover, between 2005 to 2014, 104 complaints were filed pursuant to a total of 112 raids carried out by the ED (93% rate of action on raids). Surprisingly, from 2014 to 2022, over 3000 raids were conducted which led to only 888 complaints (29% rate of action on a raid), demonstrating the use of frivolous raids as a tool of harassment post-2014.”