Fourteen opposition political parties have moved the Supreme Court of India, seeking pre-arrest and post-arrest guidelines for the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED), citing arbitrary arrest of opposition leaders.
The petitioners are: Congress, Dravida Munnetra Kazhagam (DMK), Rashtriya Janata Dal, Bharat Rashtra Samithi (BRS), Trinamool Congress (TMC), Aam Aadmi Party (AAP), Nationalist Congress Party (NCP), Shiv Sena (UBT), Jharkhand Mukti Morcha (JMM), Janata Dal (U), Communist Party of India (Marxist), Samajwadi Party (SP), J&K National Conference.
The plea was mentioned on Friday before CJI Chandrachud by Senior Advocate AM Singhvi who has listed the same for hearing on April 5.
The plea has been filed “in light of the alarming rise in the use of coercive criminal processes against Opposition political leaders and other citizens exercising their fundamental right to dissent and disagree with the present Union Government”.
TRIPLE TEST
It has been averred that investigating agencies such as the 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.
“A clear trend of using ED raids as a tool of harassment, with the action rate on raids i.e. complaints filed pursuant to raids reducing from 93% in 2005-2014, to 29% in 2014-2022. 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 petition submitted.
In this context, certain prospectively applicable guidelines governing the arrest, remand, and bail of persons in offences not involving serious bodily harm have been sought.
For arrest and remand, it has been sought that the triple test be used by police officers/ED officials and courts alike for arrest of persons in any cognizable offences.
“Where these conditions are not satisfied, alternatives like interrogation at fixed hours or at most house arrest be used to meet the demands of investigation,” the plea adds.
‘BAIL AS RULE, JAIL EXCEPTION’
On the aspect of bail, the petition states 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.
In case of special laws such as Prevention of Money Laundering Act, 2002 (PMLA) with stringent bail conditions, the petitioners seek that such bail provisions be harmonised with Article 21 of the Constitution.
“As such, therefore, where it appears that the trial is unlikely to be completed within six months, the accused be released on bail even under special laws unless the conditions in the triple-test are not fulfilled,” the plea submits.
The petition has been drawn and filed by Advocate Shadan Farasat.
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