The Pre-Trial Arrest of Opposition Leaders in the Middle of General Election Disturbs the Rule of Electoral Game | Vijay Kumar

Even though the mid-night arrest of Arvind Kejriwal, the Chief Minister of Delhi, after the election process has already kicked in, was expected, yet it is unprecedented. The arrest of Kejriwal following earlier arrest of Hemant Soren, Chief Minister of Jharkhand, have fateful implications for Democracy Constitutionalism and Rule of Law.

Being a Constitutional Scholar, the present writer would refrain from political commentary, and hence, this column is confined to the impact of the arrest of the opposition leaders in the middle of the electoral process on constitutionalism. The opposition groups will argue that the arrest of Kejriwal is a crude attempt to divert attention away from the dubious illegality of Electoral Bonds, described as the biggest extortion racket launched by the BJP. On the other hand, the cheerleaders of BJP will shout that the man who entered into the political arena on the platform of anti-corruption crusade is himself tainted with corruption. How these competitive political issues play out will ultimately depend on the result of an election.

It cannot be anybody’s case that the law should be different for the influential peoples. If evidence brought before the Court establishes the commission of an offence, the person concerned deserves condign punishment. The difference, however, between pre-trial bail and post-conviction sentencing is well-laid and distinct and must be maintained, as articulated by the Supreme Court in catena of its pronouncements, though its application is contingent on hunches of the benches.

Free and fair elections have been declared as a basic feature of the Constitution. The legitimacy of the election warrants a level playing field. Democracy needs as much Ruling Party as the Opposition for its survival, legitimacy and vibrant functioning, nay, democratic accountability. The arrest of leaders of political parties, belonging to the Opposition, in the middle of the election, or even on the eve of election, rudely disturbs the political symmetry with ominous implications for the sanctity of electoral process and democracy.

The presumption of innocence is so fundamental in criminal jurisprudence that any derogation of it impinges upon the right to life and liberty guaranteed under Article 21 of the Constitution. As the survival of constitutional democracy is at stake, commitment to constitutionalism desiderates healthy competitive electioneering through fair rule of the game. The terror of letting loose the draconian arms of law against the leaders of opposition parties in the thick of the election will eventually pave the way for the emergence of an authoritarian structure in India. The eerie similarity between the emergency when all opposition stalwarts were put in jail by the Indira Gandhi government and the present Modi government is unmistakable.

The allegation of the motivated nature of arrest made by Kejriwal’s supporters or the existence of iron-clad evidence, as asserted by the investigating agency, is a matter for the trial to be adjudged in the light of evidence adduced before the court. But the following contexts cannot be ignored:—

• The credibility of investigating agencies, such as ED, CBI and Income Tax is at its lowest ebb, and their head are reduced to be mere mice squeaking under the prime minister and home minister’s chairs;
• There is a distinct pattern in last ten years, supported by the revelation of the identity of the donors of electoral bonds, that if anyone wants to screen himself against corruption, he has the option of joining the BJP, failing which the investigating agency will go after him with full venom;
• Almost half of the donors of electoral bonds are those business houses which were subjected to raids by investigating agencies, and the moment they started buying electoral bonds in favour of the BJP, they felt safe and secure.

These illustrations, which are merely illustrative and not exhaustive, deserve the full attention of the Court – not merely of the trial court, which is mainly concerned with the merit of allowing or rejecting the bail application, but even of the constitutional courts. Indeed, these instances must enter into the minds of electorates, and media is fastened with a special duty to propagate them. The cumulative effect of these patterns has resulted in unleashing the pervasive climate of fear. Thus, the chilling effect of the arrest of Kejriwal on the fairness of the electoral process cannot be overemphasised.

Ambivalence on the part of the Supreme Court on the issue of personal liberty

The Supreme Court of India has been interpreting the freedom of speech and expression in expensive terms right from its inception, and its latest decisions in granting a stay on the fact-check notification issued by the Government of India and outlawing the legality of the electoral bond scheme are progressive and logical culmination of its liberal approach. The activism demonstrated for freedom of speech and expression is, however, conspicuous by its utter absence in the arena of personal liberty notwithstanding the fact that Article 21 of the Constitution stands on a higher pedestal than Article 19 which guarantees the freedom of speech and expression. After 44th amendment, the right of personal liberty embodied in Article 21 can not be suspended even during an emergency, whereas the rights enshrined in Articles 19 and 14 have no such immunity. If the voter’s right to know the criminal antecedent of candidate(s) and the manner of funding of political parties is held to be inescapable concomitant of democracy, maintaining the basic equilibrium between the ruling party and opposition, too, is an indispensable component of it. The logical corollary of this is that there should be an embargo for custodial interrogation, once the date of election is announced and the model code of conduct kicks in.

The indifference on the part of the Election Commission

The Election Commission of India has a reservoir of powers vested in it in the absence of any parliamentary legislation. If the Election Commission of India, in its plenary constitutional power, can pass an order for the removal of Home Secretaries of many states and DGP(as happened in the case of West Bengal), or order for mass scale transfer of bureaucrats, it can – indeed it should - restrain the investigating agencies from letting loose the reign of terror by arresting the leaders of opposite parties. The brazen-faced impunity, through unprecedented scale of abuse of power, by investigating agencies, needs effective interrogation by the Election Commission. It is incumbent upon the Election Commission of India, as an umpire, to act fairly and be seen to be acting so.

The impact on democracy is the test for evaluating the legitimacy and credibility of constitutional courts and other constitutional functionaries. If under-activism in the arena of personal liberty on the part of constitutional courts, especially the Supreme Court, disturbs the balance of power between the ruling dispensation and the opposite parties, the democracy and rule of law become casualties and the evolution of constitutionalism start running athwart.

(Author: Vijay Kumar, senior advocate, Supreme Court of India and author of the “Theory of Basic Structure : saviour of The Constitution and Democracy”)