Kejriwal bail: SC verdict an embarrassing blow to BJP-led Centre and probe agencies

The strong observations made by the top court in its judgment, particularly in the opinion given by Justice Ujjal Bhuyan – the main judgment has been authored by Justice Surya Kant, on Kejriwal’s long incarceration as an undertrial and against the CBI’s failure in completing its probe to pave way for a trial are bound to add heft to the allegations by AAP, and indeed the wider Opposition, of the BJP misusing central probe agencies to target its political rivals.

There are multiple pertinent points that the two-judge bench of the apex court has canvassed, and reiterated (similar reasons were cited by the court earlier while granting Kejriwal bail in the same case being pursued by the Enforcement Directorate), which, moving forward, would arm Kejriwal and the INDIA bloc parties in targeting Prime Minister Narendra Modi’s government on alleged misuse of probe agencies and to paint Opposition leaders in trouble with the law as ‘victims of a political conspiracy’.

No likelihood of early trial 

Justice Kant, in his judgment, noted that “the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process... prolonged incarceration of an accused person, pending trial, amounts to an unjust deprivation of personal liberty.” This oft-quoted dictum but increasingly rarely adhered to dictum of India’s bail jurisprudence has been flouted repeatedly, often eagerly abetted by the judiciary itself, under Modi’s reign in cases that involve political leaders and those dissenting against the regime.

With specific regard to the case against Kejriwal, the court has also underscored that the “completion of the trial is unlikely to occur in the immediate future” since all that the CBI has done in the case thus far is file one supplementary chargesheet after another, without actually taking the matter to trial.

“The fourth supplementary chargesheet was filed as recently as 29.07.2024 and we are informed that the trial court has taken cognizance of the same. Additionally, seventeen accused persons have been named, 224 individuals have been identified as witnesses, and extensive documentation, both physical and digital, has been submitted,” the court noted. It added, “So far as the apprehension of the Appellant (Kejriwal) influencing the outcome of the trial is concerned, it seems that all evidence and material relevant to the CBI’s disposition is already in their possession, negating the likelihood of tampering by the Appellant.”

Read together, both these reasons cited by the court while granting Kejriwal bail – the court also noted that all other AAP leaders similarly accused in the case had already been released on bail on similar grounds – subtly highlight the modus operandi frequently adopted by probe agencies in cases against politicians and critics of the government to ensure that they remain incarcerated despite no likelihood of an early trial.

Timing and necessity

Even more damning observations for the probe agencies, and by extension, the Centre, have been made by Justice Bhuyan in his opinion.

Even more damning observations for the probe agencies, and by extension, the Centre, have been made by Justice Bhuyan who raised serious questions on the “timing and necessity” of the CBI’s action against the Delhi CM. In a damning indictment of the CBI, Justice Bhuyan held, “Investigation must not only be fair but must seem to be so... Like Caesar’s wife, an investigating agency must be above board. Not so long ago, this Court had castigated the CBI comparing it to a caged parrot. It is imperative that CBI dispel the notion of it being a caged parrot. Rather, the perception should be that of an uncaged parrot.”

Asserting that CBI’s decision to arrest Kejriwal “raises more questions than it seeks to answer” Justice Bhuyan held, “CBI case was registered on 17.08.2022. Till the arrest of the appellant by the ED on 21.03.2024, CBI did not feel the necessity to arrest the appellant though it had interrogated him about a year back on 16.04.2023. It appears that only after the learned Special Judge granted regular bail to the appellant in the ED case on 20.06.2024 (which was stayed by the High Court on 21.06.2024 on oral mentioning) that CBI became active and sought for custody of the appellant which was granted by the learned Special Judge on 26.06.2024."

"Even on the date of his arrest by the CBI on 26.06.2024, the appellant was not named as an accused by the CBI. Only in the last chargesheet filed by the CBI on 29.07.2024, appellant has been named as an accused," said Justice Bhuyan.

“It is evident that CBI did not feel the need and necessity to arrest the appellant... for over 22 months. It was only after the learned Special Judge granted regular bail to the appellant in the ED case that the CBI activated its machinery and took the appellant into custody. Such action on the part of the CBI raises a serious question mark on the timing of the arrest; rather on the arrest itself... In the circumstances, a view may be taken that such an arrest by the CBI was perhaps only to frustrate the bail granted to the appellant in the ED case,” Justice Bhuyan held.

Furthermore, Justice Bhuyan noted that he was of the view that the grounds cited by the CBI to arrest Kejriwal did not, by themselves, satisfy “the test of necessity to justify arrest”. More importantly, he held that the agency was “wrong when it says that because the appellant was evasive in his reply, because he was not cooperating with the investigation, therefore, he was rightly arrested and now should be continued in detention.”

Right to remain silent

“It cannot be the proposition that only when an accused answers the questions put to him by the investigation agency in the manner in which the investigating agency would like the accused to answer, would mean that the accused is cooperating with the investigation. Further, the respondent cannot justify arrest and continued detention citing evasive reply. We should not forget the cardinal principle under Article 20(3) of the Constitution of India that no person accused of an offence shall be compelled to be a witness against himself... An accused has the right to remain silent; he cannot be compelled to make inculpatory statements against himself,” Justice Bhuyan noted.

These are pertinent observations as several legal luminaries, including senior advocate Abhishek Manu Singhvi, have repeatedly canvassed the need for a legal framework to prevent “insurance arrest” (an agency arresting an accused who is likely to get bail in a similar case being probed by another agency). BJP’s political rivals have also made breathless protests on the manner in which central probe agencies succeed in getting courts to reward them custody – judicial or police – of an accused merely by asserting that the individual had “not been cooperating”.

What may be a personal setback to Kejriwal and his party is the court imposing as a bail condition a bar on the AAP convenor to resume his functions as Delhi CM. This, however, is a setback more in terms of optics than substance. Similar condition had been imposed on Kejriwal when he was granted bail in the ED case and had the Supreme Court, disposing his bail plea in the CBI matter, on Friday, passed a contradictory order, the specific issue of whether or not Kejriwal can enter the Delhi Secretariat and sign administrative files as the CM, would have had to be referred to a larger Bench for further judicial review.

Besides, for the past six months, Kejriwal has remained the Delhi CM while in prison. Since he doesn’t hold any portfolio in his government, the task of signing files has been left to his ministerial colleagues; a practice that will continue for now, with Kejriwal overseeing the works without the hindrance of a jail cell. In any event, with a meddlesome Lieutenant Governor assured to stall any major decision of his government, there is little that a bailed Kejriwal can do which a jailed Kejriwal couldn’t; except, to the BJP’s disappointment, be among the people to raise a stink over not being able to function in the role the Delhi voters elected him for.

Misuse of agencies 

As such, from the judicial side, the top court’s judgment comes as a major shot in the arm for Kejriwal and the wider Opposition, which has been crying itself hoarse for the past decade, alleging “political vendetta” by the BJP through “misuse of agencies”.

Whether the top court – and its subordinate judiciary – employs the same rationale while dealing with cases against countless other ‘political prisoners’ – or indeed whether the Opposition presses for the release of countless other jailed individuals like Umar Khalid – critics of the government but not political leaders, will, however, be the real test of the judiciary as well as the Opposition’s conviction to ensure individual liberty.

The political ramifications of the judgment, however, are expected to be just as wide-ranging but that’s a different story.