6 min readMay 14, 2024 09:48 AM IST
First published on: May 10, 2024 at 08:46 PM IST
The question that can be raised after the order granting bail to Delhi Chief Minister Arvind Kejriwal is this: Does the chief minister of a state and the convenor of a party have a right to campaign for his or her party in a national election? The right to form a political party and promote its agenda is part of the fundamental right to associate and give expression to political speech. When it comes to the convenor of a political party, this right is inextricable with the duty to lead his/her party to success in an election. The purpose of contesting an election is to get elected, win and form a government. When the CM and convenor in question is from a party in opposition to the Centre, this right also encompasses the right to dissent. All this is at the heart of the democratic process, a basic feature of the Constitution. This is what justifies the grant of interim bail to the sitting Chief Minister, Arvind Kejriwal, to enable him to campaign on behalf of his party in the current phase of the general elections. The direction to not attend the office of the chief minister is curious as he has not resigned from his position and has a duty to perform to his state.
Why did it become necessary to grant interim bail and not liberty pending trial? After all, we live under a system which says we are innocent until proven guilty. “Bail not jail” is the law of the land, we are told for undertrials. Another sacred non-negotiable principle of the criminal justice system is that the burden of proof of guilt is on the prosecution, not the accused. These principles have been negotiated away by draconian legislation in the case of crimes considered “heinous” such as the consumption of narcotic drugs, economic offence and terrorism. But apart from describing these offences as “heinous”, there is no clarity on their actual definition. It is very often left to investigators, prosecutors and politicians to take decisions on such offences before an arrest is made. Add to this, the conditions imposed for the grant of bail pending trial — the court must be convinced that prima facie no offence has been committed.
This deadly combination often makes law enforcement agencies invoke the UAPA when the offence is of causing a riot or the PMLA when the offence is that of corruption. This also means that usually judges, especially those at the level of special courts, summarily reject bail applications, compelling the accused to approach a high court or the Supreme Court. The Supreme Court has often felt compelled to justify the time spent by it on bail pleas by saying that magistrate courts and trial courts ought to perform the function of granting bail fearlessly but do not do so for fear of being reversed by higher courts.
The most important legal and constitutional issue of our time is the question of the denial of the right to life and liberty by the criminal justice system. The political identity of the presumptive accused often plays a big role in the decision to prosecute or not and to arrest or not. We have no well worked-out system of what is the threshold of satisfaction required for the “reason to believe” that an offence has been committed. Our courts have not been able to answer an important question: What is the threshold of reasonableness? This means that prosecution is very often targeted.
Denial of liberty can only be justified if there is fair investigation, fair prosecution, fair conditions of detention and expeditious access to justice. There has been no judicial intervention to remedy the situation to make sure that these processes are carried out. When the issues related to the abuse of processes are raised, we are told that such abuse is no reason to deny the power to act.
Reversing the burden of proof and imposing conditions on judges which compel them to deny bail indicates the failure of the investigation system. The lack of evidence gathered in scientific and systemic ways is often sought to be overcome by the presumption of the guilt of the accused. Charges which cannot be proved are substituted with the charge of a “larger conspiracy” which needs further investigation. No investigation is ever closed, leaving open the case for “further investigation.” And now, all you need is the statement of an “approver” as the sole evidence for the “reason to believe” that an offence has been committed. This is among the strategies that have been used against Kejriwal and also against members of civil society.
Solicitor General Tushar Mehta comparing the Chief Minister’s role in an ongoing election to that of an agricultural worker or business person marks a new low in our understanding of the doctrine of equality before the law. While on the subject, there is indeed merit in granting interim bail to an agriculturalist.
We have also reached a new low in prosecution strategies when it is seriously argued that a Chief Minister eats mango or other such food to make himself sick to get medical bail. A state that incarcerates a person is duty bound to guarantee fair conditions of detention, which include respecting the right to health of the accused. We have seen the death of Father Stan Swamy who was suffering from Parkinson’s disease in custody, by all accounts due to the denial of healthcare facilities in prison.
The right to health is a fundamental right. The Bombay High Court recognised this in granting bail to Varavara Rao in the Bhima Koregaon case. This judgment was upheld by the Supreme Court.
Kejriwal has got bail but the criminal justice system continues to be broken. On whom does the responsibility lie to fix the system? The question awaits an answer while many live in fear of persecution even as others enjoy immunity. The burden on the SC is high.
The writer is senior advocate, Supreme Court and trustee, Lawyers Collective
The right to form a political party and promote its agenda is part of the fundamental right to associate and give expression to political speech. (Express photo by Amit Mehra) 
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