Justice Bhuyan’s judgment interrogates a range of systemic delays and evasions, and he does not spare the institution he belongs to. He points to higher courts lobbing the ball to the lower courts, and to courts playing safe on bail. But his judgment is a strong indictment, most of all, of the CBI.
in a series of welcome rulings recently, the Supreme Court has upheld the principle of bail as rule and jail as exception, while underlining the sacrosanct nature of the individual’s right to personal liberty guaranteed under Article 21 of the Constitution, and emphasising that the process of justice must guard against turning into the punishment. This recasting, or rather reassertion of a principled bail jurisprudence by the Court is reassuring. This is especially so given that it seemed to have taken an unfortunate step back from it for a period coinciding with a domineering executive weaponising its control of Central agencies to selectively and disproportionately target its political opponents. The apex court order Friday caps the relief granted to the AAP, whose top leadership had languished for long in jail — a little over a month after his deputy, Manish Sisodia, was granted bail, Delhi Chief Minister Arvind Kejriwal has been given a reprieve in the case involving allegations that his government had framed and implemented the 2021-22 excise policy, rolled back subsequently, to enhance profit margins of liquor manufacturers, wholesalers and retailers as part of a quid pro quo. The SC’s order allows AAP leaders to breathe freely again. But it is heartening, most of all, because it asks important questions about the state’s power to arrest an individual, lays down the necessity of due process and fairness, and emphasises the role of the courts in ensuring that investigations are not used as a tool of harassment.
“Deprivation of liberty even for a single day is one day too many”, says the separate judgment by Justice Ujjal Bhuyan, one of the two judges on the bench. Justice Bhuyan agrees with Justice Surya Kant’s conclusion that Kejriwal be given bail in a case that shows no signs of early closure. But he goes further. In a tone resonant with legal acumen and moral clarity, he also interrogates the necessity and timing of the arrest in the first place. He points to a sequence that is incriminating for the agencies whose responsibility it is to take forward the justice process. The CBI registered the case against Kejriwal in August 2022, filed four chargesheets, named 17 as accused, did not name Kejriwal. Only when a Special Judge granted regular bail to Kejriwal in an ED case nearly two years later that “the CBI activated its machinery and took the appellant into custody”. Even on the date of his arrest by the CBI, Justice Bhuyan points out, Kejriwal had not been named as an accused. “Such action on the part of the CBI raises a serious mark … on the arrest itself”, says the judge. In a system governed by the rule of law, Justice Bhuyan draws a vital distinction: “Power to arrest is one thing but the need to arrest is altogether a different thing…”.
Justice Bhuyan’s judgment interrogates a range of systemic delays and evasions, and he does not spare the institution he belongs to. He points to higher courts lobbing the ball to the lower courts, and to courts playing safe on bail. But his judgment is a strong indictment, most of all, of the CBI. “It is important that the CBI dispel the notion of it being a caged parrot. Rather, the perception should be that of an uncaged parrot”. India’s premier investigative agency, and those who pull its strings, must heed the court. Because, as the judge has underlined, the concepts of fair investigation and fair trial are inextricable from, and essential to, the just balance between the expansive powers of the state and a citizen’s rights, assured and protected by the Constitution. Kejriwal has got bail, the prosecution is in the dock.
© The Indian Express Pvt Ltd
First uploaded on: 14-09-2024 at 06:50 IST
