New Delhi: The Supreme Court’s refusal to grant bail to Delhi’s former deputy chief minister and senior Aam Aadmi Party (AAP) leader Manish Sisodia has raised questions about targeted political persecution and once again highlighted the punitive nature of undertrial imprisonment.
Sisodia is accused in the Delhi liquor excise policy case by central agencies Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) and has been in jail since February this year. He is facing charges under the Prevention of Corruption Act, the Indian Penal Code and the Prevention of Money Laundering Act.
Sisodia is one of several high-profile AAP leaders to have been held in connection with the case, in what opposition parties have referred to as an act of political vendetta.
Apart from Sisodia, AAP leaders Sanjay Singh has also been arrested in the case. Delhi chief minister Arvid Kejriwal has been summoned by the ED to appear before it on Thursday. AAP says the summons show the ED is preparing grounds to arrest Kejriwal and is an attempt by the BJP government to “finish” the party.
Earlier, another senior AAP leader, Satyendra Jain, was arrested on June 1, 2022 for a case in which the ECIR was filed in 2017.
What the court said
On October 30, a Supreme Court bench of Justices Sanjiv Khanna and S.V.N. Bhatti dismissed Sisodia’s appeal against a Delhi high court order denying him bail. The court also said that since the prosecution had assured that the trial shall be concluded in the next six to eight months, Sisodia can move a fresh bail plea if the trial is “protracted and proceeds at a snail’s pace in next three months.”
“In view of the assurance given at the Bar on behalf of the prosecution that they shall conclude the trial by taking appropriate steps within next six to eight months, we give liberty to the appellant to move a fresh application for bail in case of change in circumstances, or in case the trial is protracted and proceeds at a snail’s pace in next three months,” the order said.
“If any application for bail is filed in the above circumstances, the same would be considered by the trial court on merits without being influenced by the dismissal of the earlier bail application, including the present judgment. Observations made above, re.: right to speedy trial, will, however, be taken into consideration,” the court added.
The top court, during the hearings, asked the CBI and ED how they would establish that Sisodia laundered money, given that he never came into actual physical possession of the money. The court also observed that Sisodia cannot be kept in jail “ad infinitum”, reported LiveLaw.
Former Supreme Court judge Madan B. Lokur said that “oral observations, though important, need not form the basis of a judgment.”
“Oral observations made by any court are primarily for a better and clearer understanding of the case and the submissions made by counsel. The counsel also benefits since the line of questioning (and observations of the Court) may give an indication of the mind of the court. Therefore, oral observations, though important, need not form the basis of a judgment. I wouldn’t spend too much time on the oral observations of the court,” he said.
The Supreme Court of India. Photo: The Wire
“Basic principles of bail not considered”
However, according to legal experts, the apex court’s order denying Sisodia bail raises questions nonetheless.
“Unfortunately, basic principles regarding the grant of bail have not been considered,” said Lokur.
“First, a prima facie case must be made out by the prosecution. Here, the court believes that a prima facie case is made out. That’s a matter of opinion and deference must be given to the view of the court. Then, the gravity of the alleged crime. The court has distinguished this case from other cases like murder, rape and so on. It has also distinguished this case from other economic offences like defrauding hundreds or thousands of depositors. The prima facie case seems to be one of getting a kickback for benefiting someone.”
“The important considerations for grant or refusal of bail are: Will the accused abscond or not be available for trial? The court has not considered this and the prosecution does not seem to have adverted to this at all. Will the accused tamper with the evidence? Again, bald advertence by the prosecution, without any supporting evidence. Will the accused influence the witnesses? Bald advertence by the prosecution, without any supporting evidence. So, if the essential ingredients have been very vaguely adverted to by the prosecution, why should the accused be denied bail only because the alleged crime is prima facie ‘proved’? If such a situation is allowed to remain, nobody will ever get bail, unless the prosecution has a terrible case.”
G. Mohan Gopal, advocate in the Supreme Court and legal scholar, said that there is a “hard lesson to be learnt” from the court’s denial of bail to Sisodia.
“The hard lesson is that the primacy and preciousness of individual liberty as a human value, quite apart from the law and even the constitution, is yet to penetrate the soul of our judiciary,” he told The Wire.
“Sisodia was denied bail only on the ground that one accusation against him tentatively appears to be credible. The state has been given months more to keep him in captivity. If the evidence against him on one serious accusation is available and appears to be solid, it is not clear why the apex court would give the state several months more to keep him in captivity as an undertrial rather than ask the state to complete his trial in a manner of days on the charge that is cooked and ready.”
No bail for the next three months “unusual”
According to Lokur, the lack of possibility of bail for the next three months is “most unusual.”
“This is most unusual, if not unprecedented. Bail is being treated on par with a status quo order in a civil suit. Trial should be over in eight months? Absolutely impossible. Charges could not be framed in one CBI chargesheet for almost a year. There are 294 witnesses and 31,000 pages in one case, 162 witnesses and 25,000 pages in another. Impossibility is writ large.”
“The effect of the judgment is that undertrial imprisonment has become punitive.”
According to Gopal, the judgment also turns a blind eye to “targeted, biased, political persecution.”
“The second hard lesson learnt from the Sisodia judgment is that, yet again, the apex court has turned a blind eye to a grave epidemic of justice sweeping across the country, which is a threat to democracy and liberty – targeted, biased, political persecution through selective prosecution of political opponents. Across the country, governments (Union and state, regardless of party flags) are unleashing investigative agencies and the police at will against their political and ideological opponents and turning prosecution into an electoral strategy. Miraculously, members of the ruling dispensation hardly ever, if at all, come into the crosshairs of investigators,” he said.
“While police and prosecutors enjoy vast discretion in deciding who they may pursue and who they may spare, it is illegal to select their targets on constitutionally prohibited grounds such as their party affiliation, ideology or beliefs. The illegal selection of accused based on grounds prohibited by the constitution is called ‘selective prosecution’. When the choice of accused runs afoul of the constitution, the entire criminal proceeding is vitiated, irrespective of the determination of whether the accused is convicted or acquitted on the charges brought against them. The theory is that the constitution cannot be violated to uphold the law – such an approach would spell doom for the constitution. Our judiciary needs to act against targeted biased political persecution,” he added.
Courts should examine ED’s actions
Delhi-based lawyer Sarim Naved said the summons to Kejriwal merely hours after the Supreme Court order may legally be seen as part of the investigation, the courts should take note of “coincidences” in the ED’s actions.
“Legally it has to be seen as a part of the investigation. As a lawyer, I can say they could have summoned [Kejriwal] earlier also but they seem to have decided to summon him now. But in matters of realpolitik, a lot is understood without being said. This kind of coincidences in the ED’s behaviour, that they only go after opposition politicians, raids only happen before elections in that state – these are things that the court ought to really take into consideration,” he said to The Wire.
Last week, Rajasthan chief minister Ashok Gehlot accused the BJP-led Union government of goondagardi (hooliganism) after the ED on October 26 issued summons to his son Vaibhav Gehlot and conducted raids on state Congress chief Govind Singh Dotasra, just weeks before the state heads to elections.
Former deputy chief minister of Rajasthan Sachin Pilot also accused the BJP of targeting Rajasthan’s Congress leaders as it fears losing the elections.
“The classical idea is that state agencies are beyond any doubt that they are impartial. But when there is such a wealth of evidence that they are in fact partial, that is something that should be taken into account by courts,” said Naved.
“Otherwise, they are doing a great disservice to democracy. It is not even about this case. But procedurally, why should anybody be in jail pending trial when there is a presumption of innocence?”
“In a situation where I think it is now beyond any doubt that agencies, especially the ED are doing the government’s bidding, should that not be a factor that courts should have in mind while dealing with ED cases? The answer is yes. It is something they really should examine,” he added.