SC junks plea by 14 Opposition parties accusing Centre of misusing CBI, ED

The Supreme Court said it cannot lay down guidelines in abstract without factual context with a case

The Supreme Court on Wednesday declined to entertain a plea by 14 Opposition parties led by Congress to lay down guidelines against alleged targetting of their leaders by CBI and ED, saying politicians don't enjoy a higher immunity or protection than the common citizens.

A bench of Chief Justice of India D Y Chandrachud and Justice J B Pardiwala said guidelines for pre arrest and post arrest can't be laid down in abstract, as it would be dangerous proposition.

"If you say political space for Opposition has shrunk, the remedy lies in political space, not in court," the bench told senior advocate A M Singhvi, who was arguing the matter on behalf of the parties.

"You can come back in a single case or a group of cases, we will deal with it. To lay down guidelines in abstract is not possible," the bench further told him.

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The bench also pointed out the petitioners have extrapolated some statistics which cannot be the basis for framing the guidelines.

It also said once it was conceded that the politicians do not enjoy higher immunity then how it can be said that the agencies will not exercise the power of arrest unless three fold step is met.

Singhvi submitted that the issue is directly related to democracy and level playing field.

However, the bench said, “The moment you say democracy, basic structure, skewed application of law to political leaders, then it is essentially a petition for politicians".

The bench pointed that this is not a petition by someone who is aggrieved, it is a petition by political parties. “Just because of some figures and statistics, can we say that the investigation should be stopped? Can there be immunity? Ultimately a political leader is basically a citizen. As citizens, we are all amenable to the same law,” the bench noted.

As many as 14 opposition political parties led by Congress last month have filed a plea in the Supreme Court alleging misuse of the CBI and the Enforcement Directorate in a selective and targeted manner with "a view to completely crush political dissent and upend the fundamental premises of a representative democracy".

The parties sought laying down of guidelines for governing the arrest, remand, and bail of persons in offences, not involving serious bodily harm, and excluding homicide, rape, terrorism etc.

The petitioners political parties are INC, DMK, RJD, BRS, Trinamool Congress, AAP, NCP, Shiv Sena (UBT), JMM, JD(U), CPI(M), CPI, Samajwadi Party, J&K National Conference).

The plea claimed all these parties, which were in power in 11 States/UTs, together represented 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.

The plea also cited statistics demonstrating "the shocking and unconstitutional state of affairs".

It claimed there is 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 per cent in 2005-2014, to 29 per cent in 2014-2022.

"So far, only 23 convictions under the Prevention of Money Laundering Act, 2002 have been secured, even as the number of cases registered by the ED under the PMLA have risen exponentially (from 209 in 2013-14 to 981 in 2020-21, and 1,180 in 2021-22)," it said.

Between 2004-14, of the 72 political leaders investigated by the CBI, 43 (under 60 per cent) were from the Opposition of the time. Now, this has risen to over 95 per cent, it said, contending the same pattern is reflected in ED’s investigations as well, with the proportion of Opposition leaders from the total number of politicians investigated rising from 54 per cent (before 2014) to 95 per cent (after 2014).

The plea sought laying down of guidelines for arrest and remand, like 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).

As for bail, the petitioners sought a direction that the principle of ‘bail as rule, jail as exception’ should be followed by all courts throughout, especially in cases where non-violent offences are alleged, and that bail should be denied only where the triple-test is met, it pleaded.