Opposition parties petition Supreme Court; allege misuse of CBI, ED against their members, dissenting citizens

The Chief Justice listed the matter to be heard on April 5. The petitioners have made specific demands regarding the rationalisation of arrest, remand and grant of bail in such cases to prevent harassment of opposition party members.

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A group of 14 opposition parties has knocked on the door of the Supreme Court flagging the issue of law enforcement agencies, namely the Central Bureau of Investigation (CBI) and the Directorate of Enforcement (ED), being deployed against members of opposition political parties and citizens exercising their fundamental right to dissent and disagree with the present Union Government.

The petition was mentioned by senior advocate Abhishek Manu Singhvi on Friday morning before the Chief Justice of India, who directed to list the matter on April 5.

The petitioners are the Indian National Congress, the Dravida Munnetra Kazhagam, the Rashtriya Janata Dal, the Bharat Rashtra Samithi, the All India Trinamool Congress, the Aam Aadmi Party, the Nationalist Congress Party, the Shiv Sena (Uddhav Balasaheb Thackeray), the Jharkhand Mukti Morcha, the Janta Dal (United), the Communist Party of India (Marxist), the Communist Party of India, the Samajwadi Party, and the J&K National Conference. Together, they represent 42.5 percent of the votes cast in the 2019 General Elections, and hold power in eleven states and Union territories.

The petition alleges:

i. 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 percent in 2005–14, to 29 percent in 2014–22.

ii. Only 23 convictions under the Prevention of Money Laundering Act, 2002 (PMLA) have been secured as of now, 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). 

iii. Between 2004–14, of the 72 political leaders investigated by the CBI, 43 (under 60 percent) were from the Opposition of the time. Now, this same figure has risen to over 95 percent. 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 percent (before 2014) to 95 percent (after 2014). 

In their petition, the parties have sought the following relief:

With regard to 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 cognisable offences, except those involving serious bodily violence. Where these conditions are not satisfied, alternatives like interrogation at fixed hours or, at most, house arrest could be used to meet the demands of investigation.

With regard to bail, the petitioners seek 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. Where special laws such as PMLA with stringent bail conditions are concerned, 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 should be released on bail even under special laws unless the conditions in the triple-test are not fulfilled, the petition says.