Supreme Court rejects Opposition plea: No exclusive rules for politicians, same as rest

On the contention of the petitioners that skewed application of the law had led to an “uneven playing field” and shrunk the space for dialogue, the CJI said, “When you say that space for opposition has shrunk, the remedy is in that space, the political space. Not court.”

The petition had been moved by the Congress, DMK, TMC, RJD, AAP, BRS, NCP, Shiv Sena (UBT), JMM, JD (U), CPM, CPI, SP and NC.

The petitioners alleged “selective and targeted” use of Central probe agencies against their leaders and sought laying down of guidelines for arrest, remand and bail. They sought certain prospectively applicable guidelines governing the arrest, remand and bail of persons in offences – that may or may not be punishable with imprisonment for above 7 years – not involving serious bodily harm.

Appearing for the petitioners Wednesday, Senior Advocate A M Singhvi told the bench that statistics show a huge increase in CBI and ED cases between 2014 and 2021 but there have been only 23 convictions.

The CJI pointed out that the conviction rate in the country was dismal even otherwise.

Singhvi said he was not just on the rate of conviction. Of the 121 political leaders probed by ED and 124 probed by CBI, he said 95 per cent were from the Opposition. He said this has a chilling effect on the legitimacy of the political Opposition.

The bench pointed out that it was not a plea by some aggrieved individuals but 14 political parties. The CJI asked whether it can say no investigation or prosecution citing the statistics. He said that ultimately a politician too is basically a citizen and that as citizens, all are amenable to the same law.

Singhvi said he is not trying to interfere with any ongoing investigation. If the statistics show a skewed application of the law which has a chilling, harassing effect, he is seeking guidelines against it.

He said the 14 political parties represent 42 per cent of the electorate across the spectrum and that if they are affected, it means the people too are affected.

The bench referred to guidelines sought by the petitioners and said “you say for lesser offences punishable with less than 7 years jail term, there should be no arrest unless the triple test is satisfied… But take cases which don’t involve an attack on bodily integrity. For example, there are financial scams of crores. Can we say don’t arrest because it does not involve an attack on bodily integrity?”.

The triple test for arrest refers to flight risk, reasonable apprehension of tampering evidence, influencing/intimidation of witnesses.

The CJI pointed out that if the court grants the prayer, it will essentially be doing what the legislature is supposed to do. “To say that there should be no arrest in cases not involving bodily harm or child sex abuse, that is for the legislature to do,” he said.

The bench said it cannot consider a case divorced from its facts.

“Come back to us (with) even a single case or a group of cases where you find that a political leader has been targeted to silence… Our problem, as the Supreme Court, is for us to start laying down guidelines in an abstract context without the facts of a particular case,” the CJI said and referred to cases where the court had laid down guidelines regarding arrest and bail. He said “all these are in the context of a fact situation”.

Singhvi, however, said “where the law is being weaponised for its slanted application, this will not be the answer”. He said there is a “deliberate and conscious weaponisation of a particular branch of law” and that in a majority of the cases, arrest was on the ground of gravity of the offence and the agencies were unable to show whether the triple test requirements had been met.

The bench, however, said that if an individual comes to the court, the law which it lays down as the highest court of the country may be regarding the facts of the case but not confined only to that case.

“On the basis of those facts, we can evolve a principle of general application based on the facts which come before us. But in the absence of specific facts, for us to lay down general principles of law is again a dangerous proposition. Once we have facts in a case or a group of cases, then we can lay down law not just for that case,” the bench said.

With the court reluctant to entertain the plea, Singhvi sought permission to withdraw it “at this stage”. The request was allowed by the court which dismissed it as withdrawn.