Sanjay Singh’s Bail: Judicial Evasion by Non-Order?

On 2nd April, the Supreme Court granted bail to Aam Aadmi Party [“AAP”] MP Sanjay Singh, in what has come to be known as the “liquor scam” case. At the time of writing, Singh had spent around six months in jail.

While the order is undoubtedly significant in that this is the first time that one of the accused in the “liquor scam” case has received bail, the manner in which it has been passed raises a number of crucial issues pertaining to the role and function of the Supreme Court as a court of law. Let us set out the order:

Mr. S.V. Raju, learned Additional Solicitor General appearing for the respondent – Directorate of Enforcement was asked in the morning session to obtain instructions. He states that the respondent – Directorate has no objection in case the appellant – Sanjay Singh is released on bail during the pendency of the proceedings arising out of ECIR no. HIU-II/14/2022 dated 22.08.2022 instituted in respect of offences under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002.

We must record that the concession has been made on behalf of the respondent – Directorate before commencement of arguments on their side. In view of the statement made, we allow the present appeal
and direct that the appellant – Sanjay Singh will be released on bail … []

We clarify that the concession given in the Court today would not be treated as a precedent. We also clarify that we have not made any comments on the merits of the case.

There are three issues with this Order – better called a “non-Order” in my view – that I discuss below.

First, a perusal of the oral arguments reveals that in the morning session (referred to in the Order), the Court made it clear in its remarks that it believed there was no case to be made out against Sanjay Singh. The Court itself encouraged the lawyers for Enforcement Directorate to take instructions from the Agency, and noted that if it came to the examining the case, it would have to pass certain observations about Section 45 of the PMLA (presumably to the detriment of the ED’s powers). As a result, in the afternoon session, the ED’s lawyers came back and told the Court that they had no objection to Sanjay Singh being released on bail. The Order, thus, was passed on the basis of a concession by the State.

However, if you pause to think about this for a moment, there is something bizarre about a Court actively seeking the State’s cooperation so as to avoid ruling against the State. This is no part of the functions of a Court of law. Nor is this the kind of inter-personal dispute where a Court sometimes acts as a mediator. This is a criminal case, where an individual has spent six months in jail, and where multiple courts below have rejected his bail application (needless to say, there was no question of the ED making any concessions as long as it was winning before the lower courts). In other words, it is exactly the kind of case where it is incumbent upon the Court to hold the State to legal and constitutional standards, and to make it abundantly clear – through written, enforceable judicial orders – if the State is failing in its obligations.

Secondly, the concession order has a downstream effect. Recall that the “liquor scam” has seen multiple political leaders behind bars, including the Chief Minister and Deputy Chief Minister of Delhi. While individual cases are, of course, different, there is a common substratum of facts that underlies those cases. While the Court’s reasoned order granting bail to Sanjay Singh need not necessarily have affected those other cases, it might well have done so. The point is, however, that we shall never know, as the Court evaded passing a reasoned order. The result of this is that the other accused in the “liquor scam” case are deprived of even the opportunity of using Sanjay Singh’s bail order in their own, respective future applications for bail. This – for no justifiable reason – tips the balance in favour of the State, and against the individual. And this has become an unfortunate habit of late: recall how, in 2021, the Supreme Court injuncted lower courts from treating the Delhi High Court’s Asif Iqbal Tanha bail order as precedent, for absolutely no reason. The asymmetry here is glaring: when bail applications are rejected, the Supreme Court writes detailed orders explaining why the accused are not entitled to bail (going so far as to observe that “bail is the exception, jail is the rule”), and you can bet that the prosecuting agencies take full advantage of those reasoned orders! But when the boot is on the other foot, we get concession orders or “not to be treated as precedent” remarks, where – at best – one individual might be released from jail, but there is no legal consequence of note that follows.

This brings us to the last point, which is the Supreme Court’s statement that it is not commenting on the merits of the case. This may be a fair comment in general bail cases, but – as we have discussed previously on this blog – when it comes to laws such as UAPA or the PMLA, which encode the “twin test” for bail, this is disingenuous. The reason for this is that the “twin test” statutorily brings in merits considerations into the stage of bail. When the “twin test” says that an accused shall not be released on bail unless “there are reasonable grounds for believing that he is not guilty of such offense,” this is, by definition, merits hearing bundled up into a bail hearing (see the previous discussion, in the context of the UAPA, here). Indeed, the very asymmetry and injustice of the “twin test” lies in the fact that it forces the defence into a merits hearing without the tools normally available to the defence in a criminal case (leading evidence, cross-examination etc). And it is because of that very reason that UAPA/PMLA bails are overwhelmingly rejected, and individuals have to spend months and years in jail without trial.

But this, in turn, means that if an accused individual runs the gauntlet and succeeds in getting bail even under the twin test, he or she should be entitled to benefit from that during the merits phase of the trial as well: what is sauce for the goose is sauce for the gander. Indeed, as I have noted above, it is actually impossible for a “twin test” bail to be granted without an examination of the merits. The concession order, therefore, additionally deprives Sanjay Singh of the very tangible and very real benefits of a reasoned bail order. Again, one would have thought that if you have spent six months in jail without trial, this would be the least you are entitled to from a court of law.

Over the years, it has become increasingly clear that “special laws” such as the UAPA and the PMLA, with their twin test for bail, overwhelmingly stack the deck in favour of the State, and against the individual. In such a context, with the scope of scrutiny of State action already so limited, “concession orders” like the one in Sanjay Singh are disappointing. Arguably, they constitute judicial evasion by another name: an evasion of holding the State to account for its actions that have far-reaching consequences for individual liberty.