The Supreme Court on Bail

In the last segment, I discussed the periphery of bail applications filed in the Hon’ble High Court of Allahabad. As a law intern, I attended a bail application hearing at the Allahabad High Court, realizing the extensive backlog of cases and deficiencies in the justice system. I recounted Justice Bhanot's story about someone spending 17 years in jail awaiting trial, highlighting the lack of access to justice and the need for systemic change.

Recently, The Honourable Supreme Court of India has granted an interim bail to Arvind Kejriwal in Famous Delhi Excise Policy case. I’m not going into the merits of the case as the matter is sub-judice. However, what prompted the Apex Court to grant interim bail to Mr. Arvind Kejriwal?

Note: - I’m neither disrespecting nor denying the Apex Court’s Order but attempts to make reasonable critical analysis of the Apex Court’s recent order.

It must be mentioned here that the Mr. Arvind Kejriwal, the Chief Minister of NCT of Delhi, was arrested after being denied protection from arrest by the Hon’ble Delhi High Court dated 09.04.2024 in the Delhi Liquor Scam case, in which other leaders of the Aam Aadmi Party (AAP) are currently incarcerated.

After his Arrest by the Directorate of Enforcement, he filed a petition in the Special Court at the Rouse Avenue court. Bail was denied, and it was held that there was enough material available before the Learned Special Court showing the involvement of the AAP Convenor in framing Excise Policy.

Subsequently, Shri Arvind Kejriwal appealed in the Hon’ble High Court of Delhi. It was contented by the Learned Counsel appearing for the Appellant, Senior Advocate Shri Abhishek Manu Singhavi, that the arrest made by the Directorate of Enforcement was malafide. It was made at the time of elections, and thereby seriously compromising ‘free and fair elections’ and thus, also affecting ‘democracy’ which in turn is ‘basic structure’ of the Constitution of India.

To which the Hon’ble Delhi High Court responded and held that: -

(Arvind Kejriwal vs Directorate of Enforcement, 2024 SCC Online Del 2685)

"168. In this Court's opinion, the Courts of law are one of the pillars of democracy.  Judges, as custodians of justice, are bound by the law and not by political considerations. The independence of the judiciary not only refers to judgments independent of hidden or apparent biases but also independent of the effect of political affiliations of those who appear and are parties before them. The oath of a judge binds her to the Constitution through its words which always resound in her ears and are etched in her mind.

169. In this regard, this Court notes that the judiciary is tasked with interpreting laws and adjudicating matters before it based on the existing laws and precedents alone, rather than the political considerations."

While adjudicating cases, the Courts are tasked with interpreting and applying the law, rather than delving into the realm of politics. While politics may influence governance, it is not the purview of the Courts to adjudicate political matters. Instead, the judiciary remains steadfast in its commitment to the principles of law and justice, independent of political considerations.

The Hon’ble Court made further Observations and observed that it was his Conduct of not joining investigation which left little option with the Directorate of Enforcement other than his arrest for the purpose of investigation of a pending case, in which other co-accused are in judicial custody, and the investigating agency is also running against time in view of the order of the Hon’ble Supreme Court vide which it was ordered that the trial in this case should proceed expeditiously.

Similarly, in the other parts of the said judgment, the Hon’ble Court observed that the sole responsibility and duty lie in the application of law enacted by the parliament, which represent the will of the people.

"173. This Court observes that political considerations and equations cannot be   brought before a Court of law as they are not relevant to the legal proceedings.

176. The Courts have been and are better left untouched by political influences or interferences and their only and sole responsibility and duty is application of law enacted by the Parliament which is the will of the people."

Lastly, the Honourable Court held that the Courts are concerned with Constitutional Morality and not Political Morality.

In preface of this Judgment, the Delhi High Court rejected the Bail Application and remanded Mr. Kejriwal in Judicial custody.

Affected by the said judgment, the accused appealed to the Apex Court against the order of the High Court. While granting interim bail, the Apex Court, in it’s vide order dated 09.05.2024, directed that-

“18. ……we direct that the appellant – Arvind Kejriwal will be released on interim bail in connection with case ECIR No. HIU-II/14/2022 dated. 22.08.2022 till 1st of June 2024, that is, he will surrender on 2nd of June 2024 on the following terms and conditions:

(a) he shall furnish bail bonds in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the Jail Superintendent;

(b) he shall not visit the Office of the Chief Minister and the Delhi Secretariat.

(c) he shall be bound by the statement made on his behalf that he shall not sign official files unless it is required and necessary for obtaining clearance/ approval of the Lieutenant Governor of Delhi;

(d) he will not make any comment with regard to his role in the present case; and

(e) he will not interact with any of the witnesses and/or have access to any official files connected with the case.”

Note: The decision of the Appellate Court is respected and honoured.

One of the concerning questions that rise after this Order is, whether there are two classes of citizens?  One, that is to say Ordinary classes of citizens and the other is to say the so-called persons at the top positions i.e. who are looking after the Public functions. As it was contented by the Directorate of Enforcement that grant of interim bail/release on this account would be giving premium of placing the politicians in a privileged position compared to ordinary citizens of this country.

The Apex Court considered several factors regarding the position of Shri Arvind Kejriwal as a National Convenor and the Chief Minister of Delhi, his involvement in National Politics, absence of criminal antecedents, and his non-threatening nature to society.  Therefore, the Apex court adopted more holistic and libertarian view, especially in light of the ongoing 18th Lok Sabha General Elections.

If we take closer look to this Consideration of General Elections by the Apex Court, does it legitimize the cause that simply because elections has been going on, the Court will grant even an interim bail to the Accused to participate in the World's Biggest Election Carnival? This is based on the premise that Free and Fair Elections are the Basic Structure of the Constitution and an essential element of Democracy. This implies that Mr. Kejriwal, even though he's not contesting in this Election, holds significant importance in these General Elections. Without his participation, the purpose of Free and Fair Elections would be compromised.

It’s very imperative to look into the facets of this order and attempt to justify why ordinary individual citizens are still behind the bars for many years for petty offences, hoping to obtain bail, even if it's interim bail.

This surely demonstrate to the reasonable and prudent person that everyone is not equal physically and biologically but equal in the eyes of Law. If that liberal approach has been applied by the Honourable Supreme Court in the present case, then why there are plethora of bail applications pending before different Courts in this country?

This case clearly resembles that the Apex Court can go to great lengths to safeguard personal liberty and may take political considerations into account when granting bail. However, that is not the purpose for which courts are established. Courts cannot enter into the political considerations to grant interim bail since they are Court of law. They must consider the procedures established by law, the rule of law, and constitutional morality, not political morality.

When it comes to the Apex Court, the work becomes more responsible in considering and adjudicating the matters that serve the constitutional goals rather than political ones. The reasoning of the Delhi High Court was more comprehensive, clarifying why bail cannot be granted in the context of General elections. However, as the Supreme Court is the highest court of appeal, its decisions become the law of the land.

Sincere apologies, if anything left out in due course of writing this article.

This article was merely a critical analysis of the Apex Court’s judgment, with no intention to demean or disrespect its sanctity, decorum, and non-acceptance of this judgment.