Opinion Arvind Kejriwal’s bail: From Supreme Court, a limited relief
It is at best a source of limited relief and at worst, evidence of a completely dysfunctional criminal justice system
Justices Kant and Bhuyan don’t disagree on the law applicable to Kejriwal’s arrest. They just differ on how deeply they should look at the CBI’s justification for such arrest. 
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Court judgments in India tend to hide reality behind a dense foliage of legal terms and formal words. So it comes as a refreshing surprise to read Justice Ujjal Bhuyan’s partly-concurring judgment granting bail to Arvind Kejriwal in the excise policy case and holding his arrest by the Central Bureau of Investigation (CBI) to be illegal. Justice Bhuyan cuts through the CBI’s arguments and says what is plain as daylight to an impartial observer — Kejriwal was arrested and kept in jail by the CBI to ensure he doesn’t get the benefit of bail in the Enforcement Directorate case in the excise policy matter. The other judge on the bench, Justice Surya Kant, agrees that bail should be granted but disagrees on the correctness of the arrest.
Justice Bhuyan’s judgment is more noteworthy for two reasons — the illegality of Kejriwal’s arrest, and the CBI’s attempt to use procedure as punishment. In saying so, Justice Bhuyan swims against the tide in refusing to succumb to a certain malaise that has gripped a section of India’s judiciary — a preference for toeing the government’s line in high-profile criminal cases. In these two issues and also in questioning the restrictive bail conditions imposed on Kejriwal, Justice Bhuyan has (as Justice B Nagarathna did in the Bilkis Bano case) quietly called out his colleagues for their lack of prompt and judicious action on civil rights issues.
Justices Kant and Bhuyan don’t disagree on the law applicable to Kejriwal’s arrest. They just differ on how deeply they should look at the CBI’s justification for such arrest. Justice Kant is satisfied with the CBI’s explanation as to why Kejriwal’s arrest was needed. His judgment simply lays out the justification offered by the CBI without commenting on whether they were adequate. Justice Bhuyan, however, goes in depth into the adequacy of the reasons and finds that the CBI’s justifications for arresting Kejriwal fall apart on even a little bit of scrutiny.
The CBI says that Kejriwal’s arrest was necessary because he gave “evasive replies” and was not “cooperating with the investigation”. These are fairly bland and generic grounds which tell us nothing about why it was necessary to arrest Kejriwal — a man who had been in Tihar jail for six months — almost as soon as he got bail in the ED case. Justice Bhuyan is unafraid to call a spade a spade here pointing out that it seems as if the CBI just wanted to make sure Kejriwal didn’t get the benefit of bail in the ED case.
Justice Bhuyan points out that denying bail or arresting someone just because they don’t give the answers the investigating agencies are looking for is a potential violation of Article 20(3) of the Constitution. What is the point of having a right against self-incrimination if an accused can be simply kept in jail till she confesses to her crimes? This would effectively punish someone without a clear finding of guilt.
While the judgment doesn’t say it in so many terms, it does highlight the need to reconsider a long standing problematic 11-judge bench Supreme Court judgment in State v Kathi Kalu Oghad (1961). Here the SC gave a very narrow interpretation to the right of self-incrimination holding that the right was not available at the pre-trial stage, that is, during custodial investigation. Since the 1980s, successive SC judgments have slowly whittled away at this judgment, expanding the right against self-incrimination. It is perhaps time for the Court to once and for all clear the confusion about the scope of Article 20(3). A clear judgment outlining the exact scope of the right against self-incrimination is still needed.
The use of procedure as punishment by investigating agencies is well known in India. It is cost free to use technicalities and sometimes blatant illegalities to make an accused sitting in jail run from court to court for bail. The CBI attempted something similar here by arguing before the SC that since a chargesheet had been filed against Kejriwal, he should be made to go back to the trial court to seek bail afresh. The CBI claimed, preposterously, that the SC not sending the matter back to the trial court would “demoralise” the High Court judge who had denied bail to Kejriwal on this ground.
Both judges would have none of it, pointing out the waste of the Court’s time and the assault on liberty such a move would represent. More so in this case since the Delhi HC had already heard elaborate arguments before denying bail. Justice Bhuyan is especially critical of the Delhi HC for having asked Kejriwal to approach the trial court once again for bail after having heard elaborate arguments on the merits of the matter. He reiterated the need for trial courts and HCs to be “alert to the need to protect personal liberty”, highlighting the unfortunate trend (also bemoaned by his colleague Justice B R Gavai) of trial court and high court judges simply denying bail to the accused in high profile cases, whether it is legally justified or not. This is of course a much larger issue, one which the SC’s judicial orders cannot solve.
It is not a great win for justice that the Supreme Court granted bail in a criminal matter. It is at best a source of limited relief and at worst, evidence of a completely dysfunctional criminal justice system. Judgments such as Justice Bhuyan’s statements inadvertently reveal what’s broken in the criminal justice system — the judiciary. His judgment adds to the small, growing chorus in the SC over courts simply abandoning their constitutional duties either out of fear or favour. Judges seem to be under the impression that it is “safer” to simply deny bail and toe the government’s line in criminal cases.
The writer is co-founder of Vidhi Centre for Legal Policy. Views are personal
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