Introduction
In a brief order passed yesterday, a two-judge bench of the Supreme Court granted “interim bail” to the Chief Minister of Delhi, Arvind Kejriwal, for the purposes of campaigning for the ongoing general elections. According to the terms of the “interim bail” order, Kejriwal – who was in custody (as an under-trial) in a money-laundering case, is required to surrender and return to custody on June 2, the day after the elections conclude.
The eight-page order is shorn of any detailed reasoning, and – as I shall argue – both reflects certain serious problems with our criminal justice system (many of them the creation of the Supreme Court itself), as well as adding to those problems. Editorials that have therefore offered qualified praise to the Court for its order (such as this one) are wide of the mark.
Before we begin, however, it is important to note that the criticism of the Court’s order is not a criticism of the fact that Arvind Kejriwal has regained his liberty (albeit temporarily). As this blog has consistently maintained, personal liberty is a good thing, and we should have a lot more of it than what our courts allow. The criticism is of the road that the Court has taken to get there, and the malaise that it both reflects and contributes to.
The Order
Let us now look at the order itself. As the Court itself notes, “interim bail” is not a concept that can be found under a statute, but rather, it is a judicial invention that flows from Article 21 of the Constitution. For this reason, there are no real standards that guide or channel the judicial discretion in granting “interim bail”, other than judicial wisdom, as applied to the case before it (it is somewhat striking that out of the four cases the Court cites to justify the power of granting interim bail, none of them are actually cases where interim bail was granted because of the facts – something that would have allowed us to glean some indication of what kinds of facts would be necessary). Historically, “interim bail” has been granted in situations where a situation (often, a situation of distress) necessitates the temporary release of an under-trial: say, for example, the death (and funeral) of a close relative.
In this case, the Court adds a seemingly new category – that of campaigning in a general election. The only reason that we are given is two words – the “prodigious importance” of the General Election (paragraph 8). When, however, you scrutinise this a little closely, a lot of problems arise.
First, the general elections began on 19 April. Arvind Kejriwal was arrested on 21 March. At the time the elections began, he had already spent nearly a month in prison. The proceedings before the Supreme Court (where he challenged his arrest and subsequent custody) had themselves been going on for substantial time before he was released on “interim bail” on 10 May. So, is the General Election prodigiously important enough for Arvind Kejriwal to have twenty days to campaign, but not prodigiously important enough to allow him to campaign for its entire duration?
Secondly, there are other significant Opposition leaders that have been arrested in the run-up to the elections, and continue to remain in custody (the most prominent among them being Hemant Soren, the former Chief Minister of Jharkhand), including leaders from Arvind Kejriwal’s own party. These leaders have also initiated various legal proceedings – many of which have ended up before the same bench that passed the “interim bail” order. Is the General Election prodigiously important enough for the release of one Opposition leader, but not other leaders?
Thirdly, it may then be argued that the distinction is that Arvind Kejriwal is the only sitting Chief Minister who was in custody (Hemant Soren resigned just before his arrest). But Arvind Kejriwal’s Chief Ministerial position is clearly not a relevant consideration, because the Court – as part of its orders – has prohibited him from visiting his office or the secretariat, or from signing any files, while he is at liberty (these are truly perverse directions, but we will not go into them here). The “interim bail” appears to have been granted to Arvind Kejriwal the political leader, and not Arvind Kejriwal the Chief Minister.
Fourthly, if the basis of “interim bail” is political campaigning, then to whom should it apply and to whom should it not apply? There is evidently no constitutional right to campaign, especially when it comes to under-trials. Indeed, something as basic as the right to vote is denied by law to under-trials – thus creating an ironic situation where the “interim bail” order means that the very fact that Arvind Kejriwal is at liberty now means he can vote in the Delhi phase of the elections, while under-trials still in custody cannot (it is important to stress, once again, that Arvind Kejriwal’s ability to vote is a good thing; only, it is something that all under-trials should have).
Now, if the basis is not the right to campaign, then what is it? In a valiant defence of the Order, Soutik Banerjee over at the SCC Observer argues that the Order carves out a “public interest defence” in personal liberty cases, and that underlying premise is that “an incarceration of a national political leader which prevents them from participating in the Lok Sabha election campaign could undermine the federal and democratic framework of the polity and Constitution.”
Let me say at the outset that I respect this attempt to retroactively reconstruct a normatively plausible rationale from eight pages of non-reasoning. Given the thin scraps of gruel that the Supreme Court habitually feeds us when it comes to legal reasoning, reconstruction is something that we are compelled to do a lot of the time. But consider for a moment what this reconstruction means: is the Supreme Court now going to be the judge of who is a “national political leader” and who isn’t? Is the Court going to dole out interim bail orders on the basis of its own judgment of which opposition leaders being in jail during an election might undermine federalism and democracy, and which ones being in jail would be entirely kosher for the sanctity of elections? Is that the kind of power that we want the Supreme Court to exercise in cases of this kind?
Reflecting and Entrenching the Problem
But this brings us to the question of why the Court is exercising this kind of power in the first place. Indira Jaising’s piece in the Indian Express – “Arvind Kejriwal has got bail, but his arrest indicates a broken criminal justice system” – is an excellent summary of the problems. In essence, the restrictive regime of “special laws” in India (PMLA, UAPA etc) – and their interpretation by the Supreme Court – had made it virtually impossible for individuals to get bail pending trial (see also Abhinav Sekhri, “Front-loading Criminal Justice“). In particular, when it comes to the PMLA, there is a direct line between the Supreme Court’s judgment in Vijaylal Madanlal Chaudhary (discussed here), which sanctified a regime of vast and unaccountable investigative agency power, and the situation that we presently find ourselves in. Add to this the habit of the trial courts (sanctified by the High Court and the Supreme Court) of upholding arrest and granting remand without considering whether custody is actually required, and you get a cocktail of incarceration. Indeed, it is worth remembering that before yesterday’s “interim bail” order, Arvind Kejriwal’s claims for relief before other courts had been rejected; the claims of other opposition leaders in custody have also been rejected, including by the Supreme Court (and including, in some cases, by the same bench – or a part of it – that granted “interim bail”).
The “interim bail” order, then, reflects the problems with the criminal justice system: because other avenues for securing personal liberty are blocked off, you get this ad-hoc eight-page order with two words of reasoning (“prodigious importance”), and rife with internal contradictions and problems.
But it also contributes and entrenches the same problem, because what the Supreme Court is doing is adding yet another distortion to an already distorted criminal justice system. On the one hand, when the Court is actually given the opportunity to curtail executive impunity, protect personal liberty, and safeguard the rule of law through its normal jurisdiction – such as in the challenge to the PMLA – it responds by not only upholding draconian laws, but increasing and expanding state power. And then – in orders like yesterday’s – it retains for itself the discretionary power to decide when, and for whom, it can make an exception. But this is not the rule of law: this is the Supreme Court using personal liberty as a form of patronage, deciding whom to dole it out to and whom to withhold it from, on the basis of opaque criteria (in that sense, Banerjee’s reconstruction of the order – “national political figure” – is more damning than a defence).
The other problem here – which comes out in Indira Jaising’s article – is, of course, that this is a power that only the Supreme Court will wield: as we have seen in the case of not only Arvind Kejriwal but those of others as well, orders such as yesterday will rarely – if ever – be forthcoming from the trial court or the High Court. Orders such as these thus tend to further centralise power in an already heavily over-centralised Supreme Court. Thus, instead of a legal system where courts at all levels are deploying legal standards that are solicitous of personal liberty when it comes to arrest and custody, you have the near-mechanical endorsement of executive power in the courts below, followed by the possibility of the Supreme Court choosing to invoke this extraordinary remedy of “interim bail for political campaigning” if it believes that you are a national political figure! This is not how a healthy legal system works.
And in the long run, it will only create more problems for the Court itself. As we have previously discussed on this blog – in the context of anti-defection law – Courts that are seen to be actively intervening in political contests not only open themselves up to criticism from powerful actors, but also present themselves as attractive sites of capture for those same actors. The more the Court discards legal principle for extraordinary remedies such as these, the more that risk grows.
Conclusion
It is important to reiterate that this post does not argue that Arvind Kejriwal should not have been released. There are serious problems with the manner in which laws such as the PMLA operate, their potential for weaponisation, and their impact on constitutional rights. And it is the responsibility of the courts to preserve and safeguard personal liberty and individual rights in the teeth of executive impunity.
But there is a way to do that. That way is to strike down unconstitutional laws, or – if not – to interpret them in a way that rights are protected across the board, for everyone, at all stages, and by all courts: from the first police application for remand before the magistrate, to the bail application following judicial custody. The way is not for the Supreme Court to lay down legal doctrine that defers to executive power at all stages, while exercising an ad-hoc and virtually Schmittian power to make exceptions at will. The eight-page “interim bail” order, with its non-reasoning, its inconsistencies, and even in its sympathetically reconstructed shape, reveals all the problems with the latter route that the Supreme Court has taken.