In a significant step, fourteen political parties approached
the Supreme Court against the alleged use of central investigating
agencies such as Enforcement Directorate and Central Bureau of
Investigation in arresting opposition political leaders and other
citizens exercising their fundamental right to dissent and disagree with
the present Union Government. The matter which was mentioned by Senior
Advocate Abhishek Manu Singhvi before a bench comprising CJI DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala has been listed for April 5, 2023.
The political parties forming the Petitioners are 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. As per the petition, these parties together represent 45.19%
of the votes cast in the last State/UT Assembly Elections, and 42.5% of
the votes cast in the 2019 General Elections, and holding power in 11
States/UTs.
The petition argues that investigating agencies such as CBI and ED
are being increasingly deployed in a "selective and targeted" manner
with a view to completely crush political dissent and upend the
fundamental premises of a representative democracy. In order to
establish the same, the petitioners have provided with the following
statistics -
i. The action rate on raids i.e. complaints filed pursuant to raids has reduced from 93% in 2005-2014, to 29% in 2014-2022.
ii. Only 23 convictions under the Prevention of Money Laundering Act,
2002 (PMLA) have been secured as of now, even as the number of cases
registered by the ED under the PMLA have risen exponentially (from 209
in 2013-14 F.Y. to 981 in 2020-21, and 1,180 in 2021-22).
iii.
Between 2004-14, of the 72 political leaders investigated by the CBI, 43
(under 60%) were from the Opposition of the time. Now, this same figure
has risen to over 95%. The same pattern is reflected in ED’s
investigations as well, with the proportion of Opposition leaders from
the total number of politicians investigated rising from 54% (before
2014) to 95% (after 2014).
Accordingly, the petitioners have sought for guidelines for arrest and remand as well as guidelines for bail.
For
arrest and remand, the Petitioners seek that the triple test (whether a
person is a flight risk, or whether there is a reasonable apprehension
of the tampering of evidence or of the influencing/intimidation of
witnesses) be used by police officers/ED officials and courts alike for
arrest of persons in any cognizable offences except those involving
serious bodily violence. It is argued that were these conditions are not
satisfied, alternatives like interrogation at fixed hours or at most
house arrest be used to meet the demands of investigation.
For
bail, the Petitioners have sought that the principle of ‘bail as rule,
jail as exception’ be followed by all courts throughout, especially in
cases where non-violent offences are alleged, and that bail be denied
only where the aforementioned triple-test is met.
The petition has been drawn and filed by Mr. Shadan Farasat, Advocate.
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