Are politicians in our country Elite class citizens? The answer to this could be YES, as one of the petitions filed by the 14 opposition parties in the Supreme Court (SC) seems to give this indication. But yesterday the SC made this observation and said “ Politicians can not claim higher immunity” while hearing the said petition.
In the said petition, the 14 parties alleged that central investigating agencies such as the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI) are being weaponised by the Union Government to clamp down on dissent by arresting opposition leaders.
The Sr advocate for petitioners Abhishek M Sanghavi (who is also a member of the Congress party) took the court through certain data and statistics to argue the central agencies are being increasingly deployed in a ‘selective and targeted’ manner against political opponents and further added that there should be proper guidelines for arrests and remand as well as a guide for bail.
In their plea, the petitioners sought the application of the triple test for arrest and remand. The triple tests are (the determination as to whether a person is a flight risk, whether there is a reasonable apprehension of the tampering of evidence or the influencing/intimidation of witnesses. The police officials or ED officers who are demanding arrest should apply these tests before arresting these persons in any cognizable offences except for those involving serious bodily violence. It was argued that where the three test conditions are not satisfied, alternatives like an interrogation at fixed hours or, at most house arrest ought to be used to meet the demand of investigation. Likewise, with respect to bail, the petitioners sought the principle of ‘bail as a rule, jail as exception’ to be followed by all courts throughout, especially in cases where non-violent offences are alleged, and that bail be denied only where triple test conditions are met.
One other point raised in the petition was that these 14 parties together represent 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/UT.
(Friends, in their petition the opposition parties are clearly demanding that they should not be treated on par with the common citizens of the country, and be given special status).
The petition was filed by Congress, DMK, RJD, Bhartiya Rashthra Samiti (BRS), TMC, AAP, NCP, Shiv Sena (UBT), JMM, JD (U), CPI M, CPI, Samajwadi Party (SP) J&K National Conference
Further, the counsel for the petitioners pointed out certain statistics where it was shown that the conviction rate of both ED and CBI is very less, and mainly these agencies are being used by the central government to harass their opponents. The ED’s investigation against opposition leaders has increased from the total number of politicians investigated from 54% (before 2014) to 95% (after 2014). In the CBI’s case, corresponding figures are less than 60% before 2014, and 95% after 2014. From this, anyone can infer that there is a skewed application of the law that has a chilling effect on our democracy.
The 2 judge SC bench that heard this petition was headed by The Chief Justice of India (CJI).
The CJI responded by saying that “ Are you saying that because of these statistics, there should be immunity from the investigation? Politicians are also citizens, and are all amenable by the same law.” The CJI further added “ The problem with the petition is that you are trying to extrapolate statistics into guidelines, where the statistics only apply to politicians. But, we can not have guidelines exclusively for politicians. Political leaders stand absolutely on the same standing as citizens of the country. They do not claim a higher immunity. How can there be a different set of procedures for politicians? The SC could not lay down abstract guidelines. Come back with one or more cases, where there has been a specific instance or instances of the agencies being used to selectively target leaders. On the basis of the law that has been laid down, we can evolve general principles with respect to the facts of the case.”
When counsel for the petitioners said “Mass arrests are a threat to democracy. It is a sign of authoritarianism. Process becomes the punishment”, the CJI responded, “When you say that space for opposition has shrunk, the remedy is in that space. Not the court”.
Good, that the SC refused to entertain the petition, and in the end, the counsel for the petitioners was forced to withdraw the petition. This should open the eyes of these political leaders who think they are above the law and wants to get away with all their wrongdoings, with the loopholes in the law. The SC has shown them their position and told them clearly that in the eyes of law, they are common citizens, and the laws applied to politicians are the same as what is applied to other citizens of the country.
By the same analogy, tomorrow the business community may come forward and say that we are contributing so much percentage to the exchequer, therefore we should also have some special privileges.
Waiting for your views on this blog
Anil Malik
Mumbai, India
6th April 2023