'Politicians don't enjoy higher immunity': SC on Oppn's plea on misuse of CBI, ED

The Supreme Court on Wednesday declined to entertain a petition jointly filed by 14 political parties, including the Congress, Trinamool Congress, the AAP, the NCP, the Shiv Sena-UBT, alleging misuse of investigative agencies in arresting opposition leaders, and sought guidelines on arrest.

A bench headed by Chief Justice D.Y. Chandrachud and comprising Justice J.B. Pardiwala observed that political leaders do not enjoy an immunity higher than a common citizen and they are absolutely on the same footing as common citizens, as it questioned how can there can be no arrest unless the triple test is satisfied? The political parties sought a fresh set of guidelines governing the arrest and remand.

Senior advocate Abhishek Manu Singhvi, representing the political parties, tried very hard to convince the court to change its mind and lay down guidelines of arrest of the leaders of opposition parties. However, the bench stressed that politicians are citizens and cannot enjoy any higher protection and the aggrieved individual politicians can approach the court concerned for appropriate remedy.

The bench told Singhvi that when political parties argue that there is a chilling effect on the Opposition due to the CBI and ED cases against the leaders of the political parties, then the answer lies in the political space and not in courts.

Chief Justice Chandrachud said general principles of law can't be laid down in absence of specific facts and added, "we can't lay down guidelines merely on the basis of some statistics relating to politicians".

After detailed hearing in the matter, Singhvi withdrew the petition, which was allowed by the bench.

The political parties sought guidelines to fulfil and realise the guarantee of personal liberty entrenched in Article 21 of the Constitution, for all citizens, including those targeted for exercising their right to political dissent and for performing their duties as the political opposition.

The political parties forming the petitioners are: Congress, DMK, RJD, BRS, Trinamool Congress, AAP, NCP, Shiv Sena-UBT, JMM, JD-U, CPI-M, CPI, Samajwadi Party, J&K National Conference, together representing 45.19 per cent of the votes cast in the last State/UT Assembly Elections, and 42.5 per cent of the votes cast in the 2019 General Elections, and holding power in 11 states/UTs.

The plea said that 14 opposition political parties have filed a petition, in light of the alarming rise in the use of coercive criminal processes against the Opposition political leaders and other citizens exercising their fundamental right to dissent and disagree with the central government.

The plea submitted that investigating agencies such as the CBI and the 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. The petition has been drawn and filed by advocate Shadan Farasat.

"As 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. 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," added the plea.