Amid the din and bustle of the Lok Sabha elections, we have overlooked a few crucial judicial interventions aimed at curbing the misuse of powers by investigating agencies against political opponents of the ruling party.
Just before the general election was set in motion, the Supreme Court forced the State Bank of India (SBI) to reveal details of the electoral bonds, including the names of donors and beneficiaries and the donation amounts. The SBI persistently tried to wriggle out citing a ‘privacy’ clause and then said it would take time to collect all the information.
The court made the government-owned bank reveal even the hidden numbers on the bonds, which made it possible to match the donors with the beneficiaries.
What came out was startling. Firms that were raided by the Enforcement Directorate (ED) or the Central Bureau of Investigation (CBI) later donated to the Bharatiya Janata Party (BJP). The party used the funds it amassed to finance its vast election machinery, including booth committees, to build office complexes and to run the organisation, its social media network and think thanks.
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The second judicial intervention came in the midst of the elections when the Supreme Court released Aam Aadmi Party’s (AAP’s) national convener and Delhi chief minister Arvind Kejriwal from jail on bail, overruling the ED’s objections. More significantly, in the process, it laid down a set of guidelines restricting the ED’s special powers to arrest political leaders under Section 45 of the Prevention of Money Laundering Act.
The court ruled that the ED has no powers to arrest an accused after a special court has taken cognizance of the complaint. If the accused appears before the court in response to summons, they should not be treated as if they are in custody. The practice of arresting an accused who responds to court summons is “completely illegal as it may offend the right to liberty guaranteed under Article 19 of the Constitution,” it said. If the accused does not appear after the summons, the court will be within its powers to issue a bailable warrant. The apex court also mandated that ED officials should take a holistic view of the evidence and should not rely only on one set, ignoring the other materials.
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The guidelines will go a long way in curbing indiscriminate arrest of political opponents as an instrument of harassment and of getting them to defect to the ruling party.
The Supreme Court also released NewsClick founder Prabir Purkayastha from jail, ruling that his arrest was illegal and amounted to misuse of provisions under the Unlawful Activities (Prevention) Act (UAPA). To first arrest a victim and then go on adding charges under different acts while keeping them in jail had become a favoured practice under this government.
Threat of prosecution, confiscation of property, and arrest has in the past several years often been followed by defections from the Opposition, mainly the Congress, to the BJP. Defections appear to be an essential part of the prime minister’s ‘Congress-mukt Bharat’ plan. In this election, about 28% of the BJP’s candidates were turncoats. In many places, the ‘converts’ have overshadowed those BJP workers who had devoted an entire life to the party organisation, leading to frustration among the old guard.
In Maharashtra, the 2022 arrest of Nationalist Congress Party’s (NCP’s) Nawab Malik illustrated how even some of the most determined leaders could be harassed, tired out and finally bent. Released on bail after being held in prison for 16 months, Malik joined the Ajit Pawar faction of the NCP. The misuse of enforcement agencies was blamed for the split in the NCP and Shiv Sena and defections from the Congress in the state.
Last year, in another case, the apex court reaffirmed an undertrial’s right to be released on default bail if an investigation remains incomplete beyond the statutory time limit. The court came down heavily on the practice of the investigating agencies filing chargesheets against an accused despite the probe remaining unfinished. It held that the right to be released on bail would not be extinguished on mere filing of a preliminary charge-sheet.
Breaking the Opposition and adding to the ruling party’s expansion project has been the most preferred item in the toolkit of the 21th century spin dictators. Unlike the hardened dictators of the previous century, spin dictators, who have variants like strong leaders, populists and smart dictators, do not seize power through violent revolutions or military coup. The new tribe, like our own Narendra Modi, choose to hold regular elections without dissolving the established institutions.
Instead, they publicise the nominal existence of the watchdogs as evidence of a functioning democracy. They allow the Opposition to contest the polls but cleverly restrict its activities — by way of mass arrests, blocking their finances, monopolising the media and putting hurdles using the official machinery.
In last year’s Bangladesh elections, thousands of Opposition leaders were put in jail.
We had in these columns discussed at length how Modi-Shah had early in their first term rendered comatose the statutory watchdogs, such as the Election Commission, Comptroller and Auditor General (CAG), Central Information Commission (CIC) and Central Vigilance Commission (CVC), and turned the investigating agencies like the ED, CBI, Income Tax Department and the Narcotics Bureau into warhorses of the ruling party.
Clever gambits like the sealed cover became the norm in the apex court. Solicitor-general Tushar Mehta would come with information in sealed covers, declare it a ‘sensitive matter’ and get away it. This effectively subverted the golden rule of openness of the judicial procedures until it was scrapped by the incumbent chief justice.
Manipulation of the roster system was alleged. Many politically important cases were assigned to Justice Arun Mishra, who as a sitting judge of the Supreme Court had praised Modi as a “visionary”. Among these was the Judge Loya case, from which Justice Mishra recused after four senior-most judges of the Supreme Court in January 2018 held a press conference to expose the misuse of the roster system.
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Special CBI court judge Brijgopal Harikishan Loya had been found dead in a Nagpur guest house in 2014 when he was hearing the Sohrabuddin Sheikh fake encounter case in which Amit Shah was an accused. Shah, who was minister of state for home in Gujarat when the encounter occurred, had resigned in 2010 after the CBI named him in the chargesheet. Loya’s family alleged that the death was unnatural and it came after he was offered Rs 100 crore as bribe to rule in favour of Shah. The medical records said he died after cardiac arrest. Within weeks of Judge Loya’s death, Shah was discharged from the case before he had faced trial.
Ranjan Gogoi, who later became chief justice of India, was one of the four judges at the press conference and he confirmed that the Loya case was among those they had complained to the CJI about. Justices J. Chelameswar, Madan Lokur, Kurien Joseph and Gogoi had said they made repeated attempts to raise their concerns with the CJI about “selective assignment of cases to preferred judges” but nothing came out of it.
After retirement, Arun Mishra was promptly rewarded. In 2021, he took over as chairman of the National Human Rights Commission. This year, for the second consecutive year, the UN-related Alliance of National Human Rights Institutions has deferred accreditation to India’s National Human Rights Commission.
The Modi regime had assigned top priority to reining in the judiciary. Three months after coming into office in May 2014, it passed the infamous National Judicial Appointments Commission Bill on August 13, 2014. The bill scrapped the collegium system and gave the executive total control over appointments and transfer of the judges. However, luckily for democracy, the Supreme Court on October 16, 2015, struck down the NJAC Act and restored the time-honoured collegium system.
P. Raman is a veteran journalist.
