A Bench led by CJI DY Chandrachud had on March 24 agreed to take it up on April 5 after senior advocate AM Singhvi mentioned for urgent listing and hearing the PIL that sought pre-arrest and post-arrest guidelines.
The petitioners—Congress, DMK, RJD, BRS, Trinamool Congress, AAP, NCP, Shiv Sena (UBT), JMM, JD(U), CPI(M), CPI, Samajwadi Party, and JK National Conference – claimed that together they represented 45.19 per cent of the votes cast in the last State/UT Assembly Elections, and 42.5 per cent of the votes cast in the 2019 General Elections, and were in power in 11 states/UTs.
Alleging that 95 per cent of the cases were against opposition leaders, Singhvi had said asking for guidelines with regard to arrest, remand and bail to be followed by the prosecuting agencies and courts. He, however, had clarified that “We’re not trying to affect the existing investigations.”
The petition comes at a time when several leaders of the political parties—which have moved the top court—are facing CBI and Enforcement Directorate probes in corruption and money laundering cases.
The petitioners alleged that many opposition leaders had been arbitrarily arrested by the central probe agencies.
They alleged misuse of central investigating agencies such as Enforcement Directorate and Central Bureau of Investigation in arresting opposition political leaders and other citizens exercising their fundamental right to dissent and disagree with the present Union Government.
Investigating agencies such as CBI and ED were being increasingly deployed in a “selective and targeted” manner to completely crush political dissent and upend the fundamental premises of a representative democracy, they alleged.
The petitioners pointed out that ‘action rate’ on raids i.e. complaints filed pursuant to raids has reduced from 93 per cent in 2005-2014 to 29 per cent in 2014-2022 and only 23 convictions under the Prevention of Money Laundering Act, 2002 (PMLA) have taken place till now, even as the number of cases registered by the ED under the PMLA have risen exponentially from 209 in 2013-14 to 981 in 2020-21, and 1,180 in 2021-22.
Between 2004-14, of the 72 political leaders investigated by the CBI, 43 (under 60 per cent) were from the Opposition of the time. Now, this same figure has risen to over 95 per cent. The same pattern is reflected in ED’s investigations as well, with the proportion of Opposition leaders from the total number of politicians investigated rising from 54 per cent (before 2014) to 95 per cent (after 2014).
For arrest and remand, the Petitioners seek that the triple test (whether a person is a flight risk, or whether there is a reasonable apprehension of the tampering of evidence or of the influencing/intimidation of witnesses) be used by police officers/ED officials and courts alike for arrest of persons in any cognizable offences except those involving serious bodily violence.
If these conditions were not satisfied, alternatives such as interrogation at fixed hours or at most house arrest be used to meet the demands of investigation, they submitted.
The principle of ‘bail as rule, jail as exception’ should be followed by all courts, especially in cases where non-violent offences are alleged, and that bail be denied only where the aforementioned triple-test is met.
