M.K. Venu 
This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been republished here. To subscribe to The India Cable, click here.
The BJP has described the US State Departments’ comment on Delhi chief minister Arvind Kejriwal’s arrest as a “slur on Indian judiciary”. This is a classic distraction being deployed disingenuously by a party which knows the entity under scrutiny – nationally and globally – is the executive and not the judiciary. The US merely suggested it was watching Kejriwal’s arrest and the freezing of Congress’s bank accounts closely as it comes against the backdrop of the Lok Sabha elections.
The US “encourages fair, transparent, timely legal processes”, State Department spokesperson Mathew Miller said.
Coming from India’s most trusted strategic partner, the statement hardly casts any aspersion on the judiciary as the BJP claims.
It seems more like a piece of friendly advice to the world’s largest democracy from the world’s oldest democracy, both of whom are currently in a historic geopolitical embrace which, ironically, is projected as PM Modi’s biggest foreign policy achievement.
Given this backdrop, the BJP could have been more objective in assessing the US statement that it would like to see a “fair and timely legal process” in the Kejriwal case.
In fact, the US or for that matter Germany, which also spoke out only to be criticised by the Ministry of External Affairs, are both merely reflecting the anxiety of the opposition parties and the vast majority of those who voted for these parties in the 2019 elections.
Ensuring a timely and fair legal process is, first and foremost, the responsibility of the Modi regime which oversees the law enforcement and prosecution of cases. If the fence starts eating the crops, as is happening now, then the judiciary can’t do much. It is not so much the judiciary that is on test here. It is much more the investigative agencies and the selective political bias so openly displayed by them as well as the prosecution system that is primarily under question.
The BJP is trying to fire from the shoulders of the judiciary when the problem lies squarely in the backyard of the ruling party which has made a mockery of the criminal justice system by letting loose Union government agencies against the opposition so close to the Lok Sabha elections.
There is no personal money trail yet established in the Delhi liquor scam except for statements from some accused who have turned approver. Incidentally, a businessman accused of being part of the liquor scam who turned approver after receiving bail is now a candidate for the BJP-TDP alliance in Andhra Pradesh for the upcoming Lok Sabha elections.
Kejriwal’s lawyer Abhishek Manu Singhvi has rightly argued that such evidence from an accused who turns approver after getting bail is untenable unless other corroborative evidence is brought to establish a specific money trail deriving from the proceeds of the crime. Singhvi has cited key Supreme Court judgments to press this point. More pertinently, Singhvi argued that the timing and manner of Kejriwal’s arrest have a serious impact on our “democracy and fair elections” and therefore violate the basic structure of the constitution.
The freezing of the bank account of the main opposition party just before the Lok Sabha elections also has the same negative effect on democracy and fair play. The income tax department initially began with a notice to the Congress party for violation of the deposit of Rs 14 lakh cash by some 24 Congress members. In a normal tax case, a tax demand would be made on Rs. 14 lakhs and a maximum penalty of 300% would be imposed. The case would be closed. That is how tax departments work in the normal course. But in this case, when the Congress reportedly offered to pay up the maximum penalty, the tax department refused to settle the matter and brought other issues on board. Is it impossible to continue the tax investigation and yet let the Congress party spend whatever is needed for the ongoing polls? Even a high school kid would know the answer to this question.
All these actions which are deeply worrying for the health of our democracy are emanating from the executive. The judiciary has nothing to do with them. Even when the judiciary tried to right some of the wrongs, for example by striking down the patently illegal electoral bonds system, it is the executive that used proxies like the State Bank of India to subvert the intent of the Supreme Court. Therefore it is quite rich for Harish Salve to lead a petition signed by some 600 lawyers which claims that the judiciary is being browbeaten by some civil society forces. All one has to do is listen to the unedifying exchange between the CJI and Salve in the electoral bonds case to figure out who was browbeating whom and on whose behalf.
The Modi government would do well not to fire from the shoulders of the judiciary in targeting the opposition or civil society as the people are well aware of where the real problem lies. Congress President Mallikarjun Kharge rightly recalled the unprecedented press conference by four senior-most Supreme Court judges who claimed that democracy was in peril. Nothing has changed since then. Democracy is still in peril.
We all know who is undermining the Supreme Court and overturning its considered judgments via fresh ordinances or legislation. It is certainly not the opposition or civil society.
For 10 years now, Modi has been at the helm of affairs. He has run the most centralised and autocratic government since the emergency. His government has launched a relentless assault on the opposition and civil society. It is a bit rich for such a regime to claim that the opposition parties and civil society are undermining the judiciary. Even post-truths must have some limits.