By Joseph Maliakan
After two decades of slumber the Supreme Court of India has woken up. Recently, in a series of judgments upholding liberty the Supreme court has ruled that the principle ‘bail is the rule and jail is the exception’ cannot be violated even in cases charged under the draconian Unlawful Activities Prevention Act,1967 or the Prevention of Money Laundering Act 2002.
Communications in-charge of the Aam Aadmi Party, Vijay Nair
On September 2, granting bail to the former communications in-charge of the Aam Aadmi Party, Vijay Nair, a Supreme Court Bench of Justices Hrishikesh Roy and S.V.N. Bhatti said that the Enforcement Directorate has not been able to complete trial on time despite its assurances to the court and around 350 witnesses have to be examined.
The universal proposition of ‘bail being the rule and jail being an exception’ will be entirely defeated if Vijay Nair is kept in custody as an under trial for such a long duration for an offence punishable with a maximum of seven years sentence, the apex court ruled.
The bench further pointed out that the right of liberty under Article 21 is sacrosanct and requires to be respected even in cases where stringent provisions are enacted. Vijay Nair, the Court said, has been in custody for 23 months and incarcerated as an under trial.
Delhi Chief Minister Arvind Kejeriwal
The Supreme Court order granting bail to former Delhi Chief Minister Arvind Kejeriwal is very significant because it questioned the legality of the Central Bureau of Investigation arresting him.
The September 13, 2024 order granting bail to Mr. Kejeriwal was delivered by a Bench comprising Justices Surya Kant and Ujjal Bhyan. Mr. Kejriwal was first arrested by the Enforcement Directorate on March 21, 2024 under the Prevention of Money Laundering Act, in connection with Delhi Liquor Policy 2021-22. The Central Bureau of Investigation (CBI) arrested him on June 26 in a corruption case, also connected to the Liquor Policy.
Mr. Kejriwal was granted bail by a bench comprising Justices Surya Kant and Ujjal Bhuyan. They gave separate but concurring judgments. While Justice Surya Kant said Kejriwal’s arrest by the CBI was not illegal, Justice Bhuyan said that the arrest by the CBI raises more questions than it answers.
“On the necessity and need of arrest, the arrest by the CBI raises more questions than it answers! The CBI did not feel the need to arrest him though he was interrogated in March 2023 and it was only after his ED arrest was stayed … CBI became active and sought custody of Kejeriwal and thus no need to arrest him for over 22 months.
“Such action by the CBI raises serious question on the timing of the arrest and such arrest by the CBI was only to frustrate the bail granted in the ED case,” Justice Bhuyan said. He further pointed out that he failed to understand the “hurry of the CBI to arrest Kejriwal when it had not arrested him for 22 months and only arrested him when he was on the cusp of getting bail in the ED case”.
Justice Bhuyan said, “The CBI must be seen above board and every effort must be made so that arrest is not made in a high handed manner. In a country perception matters and the CBI must dispel the notion of being a caged parrot and must show it is an uncaged parrot. The CBI must be like Caesar’’s wife, above suspicion.”
Justice Bhuyan further said that it will be a “travesty of justice to keep Kejriwal incarcerated when he is on bail in the ED case.” Exercise of power of arrest must used sparingly, he said.
Pointing out that the arrest of Kejriwal by the CBI was unjustified Justice Bhuyan said “Bail jurisprudence is a facet of developed jurisprudential system. Thus bail is the rule and jail is an exception. Process of trial or steps leading to arrest should not become harassment. The CBI arrest is unjustified and thus the aappellànt should be released forthwith.”
On August 9, 2024 a bench of the Supreme Court comprising Justices B.R Gavai and K.V. Viswanathan granted bail to former Delhi Deputy Chief Minister Manish Sisodia in the corruption and money laundering cases.
“We find that on account of long incarceration running around 17 months and trial having not been commenced, the appellant has been deprived of the right to speedy trial,” the judges said. It further noted that there was not even remotest possibility of trial being completed in the near future considering there were 495 witnesses and thousands of documents running into lakhs of pages.
To keep Mr. Sisodia under custody for unlimited period of time in the hope of a speedy completion of trial would result in grave violation of the fundamental right to personal liberty under Article 21, the order said.
The court further reiterated that prolonged incarceration and the delay in the trial should be read into Sections 439 of the Code of Criminal Procedure and 45 of Prevention of Money Laundering Act.
The court also called out the prosecuting agencies’ contradictory stands, as on one hand they were ready to expedite the trial, but on the other hand on June 4 they sought one month’s time to file supplementary chargesheet.
On August 27, 2024 a bench of Justices B.R.Gavai and K.V. Viswanathan granted bail to BRS leader K. Kavitha in the money laundering and corruption cases. Kavitha was arrested by ED on March 15, 2024 and had been under custody since then. And the CBI had arrested her while she was in judicial custody in the ED case.
BRS leader K. Kavitha
During the hearing of Kavitha’s case the Supreme Court bench also questioned the fairness of the prosecution agencies and criticised their selective treatment of some accused as approvers.
“Prosecution has to be fair. A person who incriminates himself has been made a witness! Tomorrow you pick up anyone as you please? You cannot pick and choose any accused. What is this fairness? Very fair and reasonable discretion!”, remarked Justice Gavai.
These judgments of the Supreme Court, one hopes will lead to better behaviour by the prosecuting agencies, they will resist from arbitrarily arresting people without adequate reasons, and also encourage the High Courts and trial court’s in the country become liberal in the matter of granting bail.
