DY Chandrachud - SC gives historic decision

“Politicians Can’t Claim Higher Immunity” : Supreme Court of India

The Chief Justice of India, Justice DY Chandrachud has refused to entertain a petition filed by fourteen political parties led by the Congress party (headed by Sonia and Rahul Gandhi) seeking in what can be described as ‘special treatment’ for politicians being investigated by agencies like – the CBI, the ED etc.

The petition alleged that central investigating agencies such as the Directorate of Enforcement (ED) and the Central Bureau of Investigation (CBI) are being weaponized by the Union Government to clamp down on dissent by arresting opposition leaders.

A division bench of Chief Justice DY Chandrachud and Justice JB Pardiwala of the Supreme Court of India expressly refused to entertain the petition and told them they were in the wrong place for the relief they were seeking.

The judges made it clear that their relief lied in the political space, in the court of people, voters and not in the court of law.

On the allegations of misuse of the agencies by the political parties and pleaded relief, – special treatment – the bench further said that political leaders cannot claim a higher immunity than ordinary citizens, were subject to the same laws and thus a special set of guidelines cannot be issued just for them.

The petitioners’ counsel Senior Advocate Dr. Abhishek Manu Singhvi, to support their allegations of the investigating agencies drew the court’s attention to some figures of their work and success.

Highlighting the reduction of action rate on raids Dr Singhvi said it had reduced from 93% in 2005-2014 to 29% in 2014-2022. He further added that under the PMAL 2002, only 23 convictions had been secured despite the number of cases registered by the ED rose exponentially – from 209 in 2013-14 FY, to 981 in 2020-21, and to 1,180 in 2021-22.  Finally, he argued that the proportion of politicians being investigated has risen from under 60% before 2014 to 95% post 2014.

That, he argued showed a skewed application of CBI and ED jurisdictions.  This, according to Dr Singhvi, leads to a skewed non-level and uneven democratic playing field.

And then came the demand of the special treatment relief for his clients, in the form of special guidelines to be issued to these agencies.

“This is plain as day because only the opposition is   fighting these cases.  We do not want any pending case in India to be affected, or to interfere in any ongoing investigation, but only for there to be guidelines.  This is because the skewed application of law has a chilling effect on our democracy”, Dr Singhvi submitted.

Dr Singhvi proposed a Triple Test to be ordained by the apex court. He explained:

For arrest and remand, before a person can be arrested for a cognizable offence except those involving serious bodily violence, not just the agencies but courts also must determine:

  1. whether a person is a flight risk,
  2. whether there is a reasonable apprehension of the tampering of evidence, or
  3. the influencing/intimidation of

And, Dr Singhvi argued, where these conditions were not satisfied, further new guidelines for

  1. interrogation at fixed hours or,
  2. at most, house arrest ought to be used to meet the demands of inv

And to top it all, Likewise, no matter what, the principle of ‘bail as rule, jail as exception’ be followed by all courts throughout, especially in cases where non-violent offences are alleged.

According to Dr Singhvi, the 14 political parties were seeking that bail be denied only where the triple test is answered in the affirmative.

This in practical terms amounts to ‘re-writing’ parts of the IPC and CrPC for politicians. And it was not surprising when the CJI, Justice Chandrachud retorted:

“Are you saying that because of these statistics, there should be immunity from investigation?

“As citizens politicians are all amenable to the same law.”

Also read: Rahul Gandhi sentenced to 2-years imprisonment – Is his political career over?

This was a clear indication that the petition seeking new rules not only regarding arrest, remand but also bail, for politicians under the guise of guidelines was sunk.

The CJI Chandrachud further added, “The problem with this petition is that you are trying to extrapolate statistics into guidelines, where the statistics only apply   to politicians. But we cannot have guidelines exclusively for politicians.”

“Political   leaders stand absolutely on the same standing as the citizens of the country. They do not claim a higher immunity. How can there be a different set of procedure for them?” CJI Justice Chandrachud added.

“Come back with one or more cases, where there has been a specific instance or instances of the agencies being used to selectively target leaders. On the basis of the law that we have laid down, we can evolve general principles with respect to the facts of the case,” Chief Justice Chandrachud firmly added.

Chief Justice Chandrachud said it would be dangerous to attempt to formulate general guidelines in the absence of such specific facts.

Alluding to the large number of politicians from the opposition side embroiled in investigations and probes, Dr Singhvi submitted:

“Where is democracy if these people are fighting cases all the time?”

“Come to us in an individual case,” the CJI responded.

“Mass arrests is a threat to democracy.  It is a sign of authoritarianism. Process becomes the punishment”, Dr Singhvi said.

CJI retorted: “When you say that space for opposition has shrunk, the remedy is in that space, the political space. Not the Court”.

Dr Singhvi knew it by then, that the petition should be withdrawn rather than having it dismissed. And he withdrew the petition.

The political parties joining in as the Petitioners included the Indian National Congress, DMK, RJD, BRS, Trinamool Congress,  AAP,  NCP, Shiv  Sena  (UBT),  JMM, JD(U), CPI(M), CPI, Samajwadi Party, and J&K National Conference.

The petitioners (all 14 parties together) claimed, based on the 2019 Lok Sabha elections, they represented42.5% of the people (voters) of India.

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