SC refuses to entertain 14 opposition parties' plea seeking guidelines on arrest, remand, and bail of leaders

New Delhi [India], April 5 : The Supreme Court on Wednesday refused to entertain the plea filed by Congress-led 14 opposition parties, alleging "arbitrary use" of central probe agencies like the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) against opposition leaders and seeking a fresh set of guidelines governing the arrest, remand, and bail.

After the top court did not show any interest in the petition, Senior advocate Abhishek Manu Singhvi appearing for opposition parties, sought to withdraw the plea.

A bench headed by Chief Justice of India DY Chandrachud said that politicians stand on the same footing as citizens of this country.

The top court said that the political leaders don't enjoy immunity and can't claim a higher identity.

The court questioned how can there be a different set of procedure for them and said that there can not be guidelines only applying to politicians.

Senior advocate Abhishek Manu Singhvi appearing for opposition parties said that from 2013-14 to 2021-22, there is a 600 per cent increase in CBI and ED cases. "A total of 121 political leaders have been probed by ED, of which 95 per cent are from the opposition parties," Singhvi said.

For the CBI, out of 124 investigations, over 95 per cent are from opposition parties. This has a chilling effect on the legitimacy of political opposition, Singhvi told the Supreme Court.

However, the court was not convinced by the submission and remarked, "Can we say because of these statistics, there should be no investigation or no prosecution?"

"Ultimately a political leader is basically a citizen and as citizens, we are all amenable to the same law," the court observed.

Senior Advocate Singhvi replied that the parties don't want any pending case in India to be affected by the plea, and they are not here to interfere in the existing investigation.

The court said that the statistics in the petition pertain only to politicians.

The court asked how can it lay down guidelines on arrest if there is no bodily harm or child sex abuse. The court made it clear to the petitioner that they can come to court in an individual case and the court will consider it.

Singhvi told the Supreme Court that mass arrests are a threat to democracy, it is a sign of authoritarism, and the process becomes the punishment. Where is democracy if these people are fighting cases all the time, Singhvi said.

The court observed that the moment the petitioner says democracy the petition is for politicians.

The court said that the absence of specific facts to lay down general guidelines would be dangerous.

The opposition party have sought from the Supreme Court certain prospectively applicable guidelines governing the arrest, remand, and bail of persons in offences (which may or may not be punishable with imprisonment for above 7 years) not involving serious bodily harm (thereby obviously excluding homicide, rape, terrorism etc.).

The 14 Opposition political parties have filed this petition before the Supreme Court of India, in light of the alarming rise in the use of coercive criminal processes against Opposition political leaders and other citizens exercising their fundamental right to dissent and disagree with the present Union Government.

The petitioner said that as for arrest and remand, they sought the triple test 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 be used by police officers/ED officials and courts alike for the arrest of persons in any cognizable offences except those involving serious bodily violence. The petitioner said that when these conditions are not satisfied, alternatives like interrogation at fixed hours or at most house arrest be used to meet the demands of investigation.

As for bail, the Petitioners sought that the principle of 'bail as a rule, jail as exception' be followed by all courts throughout, especially in cases where non-violent offences are alleged, and that bail be denied only where the triple-test is met.

The petitioner sought to harmonise the bail provisions of special laws such as PMLA with stringent bail conditions are concerned. The opposition party also sought that if it appears that the trial is unlikely to complete within six months, the accused be released on bail even under special laws unless the conditions in the triple-test are not fulfilled.

In conclusion, the petitioners sought these guidelines to fulfil and realise the guarantee of personal liberty entrenched in Article 21 of the Constitution, for all citizens, including those targeted for exercising their right to political dissent and for performing their duties as the political opposition.

The opposition parties have said 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 representative democracy.

The petition has been drawn and filed by advocate Shadan Farasat, Adv and settled by Senior Advocate Abhishek Manu Singhvi.

They have also given various statistics. The petitioner also said that 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 per cent in 2005-2014, to 29 per cent 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 has risen exponentially (from 209 in 2013-14 FY to 981 in 2020-21, and 1,180 in 2021-22), the petitioner said.

Between 2004-14, of the 72 political leaders investigated by the CBI, 43 (under 60 per cent) were from the Opposition of the time. Now, this same figure has risen to over 95 per cent. 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 per cent (before 2014) to 95 per cent (after 2014), the petitioner said.

Various parties which have approached the top court include Congress, Dravida Munnetra Kazhagam (DMK), Rashtriya Janta Dal, Bharat Rashtra Samiti, All India Trinamool Congress, Aam Aadmi Party, J&K National Conference, Nationalist Congress Party (NCP), Shiv Sena Uddhav camp, Jharkhand Mukti Morcha (JMM), Janata Dal (United), Communist Party of India (CPI), Communist Party of India (Marxist) and Samajwadi Party (SP).

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