Relief, at last!

Finally, based on two separate but concurring opinions, Justices Bhuyan and Surya Kant granted bail to Delhi Chief Minister Arvind Kejriwal subject to certain conditions. The Delhi CM has been in custody for six long months — first by the Enforcement Directorate (ED) and then by the Central Bureau of Investigation (CBI). He was out on interim bail for a brief period of time during the general elections. While both the judges concurred on the issue of granting bail to Kejriwal, they differed on the legality of his arrest by the CBI and ED — one of the two main components of Kejriwal’s plea. It won’t be wrong to say, thus, that although Kejriwal will be relieved for the moment, certain broader questions pertaining to the case still remain unanswered. The path forward for such critical cases may remain in the realm of ambiguity in the near future.

It needs no recall that CBI formally arrested Kejriwal on June 26 when he was on the cusp of release by the ED in a money laundering case. In the fresh hearing, Justice Surya Kant found “no impediment in arresting a person already in custody…There is no violation of Section 41A (3) of Code of Criminal Procedure.” However, Justice Bhuyan, terming the arrest to be unjustified, noted: "When the CBI did not feel the necessity to arrest the appellant for 22 long months, I fail to understand the great hurry and urgency to arrest the appellant when he was on the cusp of release in the ED case.” He further added that, apparently, “only after the learned special judge granted regular bail to the appellant in the ED case, which was stayed by the HC on oral mentioning, that CBI became active and sought for custody of the appellant”.

The Supreme Court’s harsh rebuke, reminding that “not long ago, this court had castigated the CBI comparing it to a caged parrot”, reveals the pathetic state of affairs in the conduct of central investigating agencies. The accusations of them playing at the hands of the ruling party at the centre — a perennial complaint — has grown considerably louder in the past couple of years, and not without reasons. While there are examples galore, Kejriwal’s arrest by the CBI appears to be a textbook example of the centre's undue control over investigating agencies. The apex court ruled that “it is imperative for the CBI to dispel the notion of being a caged parrot. Rather, the perception should be that of an uncaged parrot." Everything said and done, one cannot be very sure that it is purely a perception and doesn’t contain traces of reality. It must go to the credit of the court that it exhibited balanced judicial propriety by not calling out the political subjugation of investigating agencies in a direct manner. This propriety must be reciprocated by the government and investigating agencies by practicing greater levels of professionalism in their conduct.

Justice Bhuyan has been on point in saying that “bail jurisprudence is a facet of a civilised criminal justice system. An accused is innocent until proven guilty by a competent court…Hence, there is a presumption of innocence...This court has been reiterating that bail is the rule and jail is the exception”. These words must be taken very seriously, and political targeting of opponents must be avoided at all costs.