Poonam I Kaushish
When truth becomes a casualty, you end up with only babble. This lexicon alongside another Orwellian truism: Some men are more equal than others stands, testimony to our continuing dance of democracy interspersed with vicious diatribe between BJP and INDIA Bloc as our fractured polity enters the fifth phase of polling with 132 seats Lok Sabha up for grabs. A sense of de ja vu overwhelms.
Certainly, taint, caste and creed are the incessant flavour of this electoral political season. Wherein power and smear go saath-saath. If yesterday bail granted to Delhi Chief Minister Kejriwal and AAP Chief for his role in irregularities and kickbacks in the now scrapped 2021 Delhi liquor policy, hogged headlines, today the sun did not shine on former Jharkhand Chief Minister Hemant Soren as Supreme Court refused interim bail in connection with a money laundering case linked to an alleged land scam worth crores. Posting the matter for hearing 17 May. Earlier Jharkhand High Court had dismissed Soren’s petition against his arrest. The JMM leader was arrested on 31 January after he resigned as Chief Minister.
A classic case of different strokes for different folks.
Citing the recent release from jail of Kejriwal as an example, Soren’s plea too was aimed at allowing his participation in campaigning for his JMM Party in the ongoing Lok Sabha elections. “My case is covered by Kejriwal’s order and I need bail for election campaigning highlighting the imminent conclusion of elections,” Soren’s lawyer argued.
It stands to reason that if the same Bench granted interim bail to Kejriwal 10 May till 1 June to campaign for elections and surrender on 2 June why not to Soren as both cases relate to Party Chiefs as also both being Chief Ministers of their respective States.
Specially against the background of the Court’s observation, “There is no gain saying that elections are the most significant and an important event this year ….. to ignore the prodigious importance would be iniquitous and wrong….supplying the vis-viva to a democracy.” Even as it made clear that bail was not a comment on the merits of the case or on the pending appeal against his arrest 21 March. It highlighted elections as the “barometer and lifeline of the Parliamentary system and its setup and ignoring elections prodigious importance would be iniquitous and wrong.”.
True, it is debateable whether the right to campaign can be grounds of bail as it is not fundamental, Constitutional or legal right. But as the Court surmised that since Kejriwal is neither a habitual offender or threat to society but an elected representative of people and Party Chief he was given bail. But that hold true of Soren too, but he got no relief.
The Court for reasons hard to fathom also dismissed Enforcement Directorate’s logic: It would create two classes of citizens and privilege politicians over others. If a politician could get interim bail to campaign, then a farmer or a company director was entitled to the same relief to attend his crops or a board meeting respectively, as all vocations were equal in stature.
The Court however, asserted granting a political leader interim bail to campaign for polls could not be compared to either a farmer seeking bail to tend to his harvest or a businessman wanting to attend a board meeting. Instead, a “more holistic and libertarian view is justified as an elected person is not just an individual but the people’s representative and participation in campaign is an inextricable part of elections.
Undeniably, the Court order on Kejriwal is extraordinary as it is attempts to send a message on the Opposition’s charge of misuse of CBI, ED etc by the Government to harass leaders opposed to it. It also underlines that in the garb of criminal procedure democracy cannot be undermined and leaders arrested on election eve in name of investigation and Courts will not be mute spectators.
Further, in TDP Chief Chandrababu Naidu’s case too, the Apex Court had “deleted the condition restraining the respondent” from participating in the political process while granting him interim bail.
Undoubtedly, granting bail could open Pandora’s box for more politicians and criminals-turned netas to exploit this loophole. They may use the poll period and the pretense of campaigning in elections to any of the three-tier system — Centre, State or local level elections as a fatal flaw to avoid a jail term.
In fact, it has raised apprehensions that hardcore criminals could infiltrate elections and seek relief from Courts based on this ground, which has now been deemed one of the legitimate grounds for relief. While it may not be a clinching ground for Courts to grant bail, it may establish it as an extra ground to seek relief and cast aspersions on the trial process and tilt the balance of scale in favour of the appellant.
Furthermore, this could create a new category of litigation for criminals who might include Kejriwal’s case as additional argument, whereby it might end up hampering the merits of the case permanently including putting influence on witnesses, evidence tampering and quid-pro-quo. This could occur in cases where agencies, constrained by time since the commencement of investigation, fail to gather conclusive evidence, in time, to outweigh this newly established ground for relief.
Also, others leaders who have not been proven guilty in a Court too might seek temporary relief during election period, as bypassing the merits of a case renders every defence of the probing agency futile in preventing relief or bail on grounds of campaigning.
Big deal if the order underscored that politicians are truly a separate class, higher in status than ordinary citizen and immune from arrest. Whereby, even ordinary people and every criminal would vie to be a politician and turn campaigners to stay out of prison.
It has already started roiling with Khalistani separatist and Waris Punjab De Chief Amritpal Singh detained under the National Security Act recently seeking similar relief for seven days from Punjab and Haryana High Court to file his nomination as an independent candidate to contest elections and campaign which is not possible from jail. But the Court denied his pleas as “it is the concern of the nation and security.”
Alongside, it raises disturbing questions about our democracy. That it does not strike any chord among our leaders who have reduced graft to a farcical political pantomime. There is no sense of outrage or shame. Can one compromise on corruption? Does politics force an indulgence on issues of governance and probity? Is this part of political dharma?
Alas, a fine distinction is drawn between a “politically-motivated” charge and actual conviction. Such is the intoxicating nasha of power that all conveniently choose to shrug it off. Dismissed at best as an aberration and at worst a squeaky knee with which one can live with.
At stake today is not only the functioning of the largest democracy but its Constitutional agenda which is more substantive than partisan politics. Consequently, where we go from here would depend on how citizens use democratic levers available to them. What gives? (INFA)
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