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Harshita Singh,
Faculty of law, BHU
The decision of the Supreme Court in granting bail to Delhi CM Arvind Kejriwal on May 10, 2024, for campaigning in the Lok Sabha election whereas denying the same for former Jharkhand CM Hemant Soren on 22 May looks confusing. Both have allegations of money laundering under PMLA[i], both cases are pending, and one is granted bail and the other plea is rejected.
Background: Arvind Kejriwal and Hemant Soren, both prominent political figures, are accused of violations under the PMLA. The Enforcement Directorate (ED)[ii] has been investigating both cases, which remain pending in court. Despite the similarities in the charges against them, the Supreme Court granted bail to Kejriwal, not without a reason: that he has to campaign for the ensuing Lok Sabha elections, but denied bail to Soren on the ground that a prima facie case against him has been established.
Election Campaigning vs. Legal Obligations: on one hand they give election campaigning extreme importance and compare it with liberty and upholding the democratic principle of giving a fair chance to campaign on the other they deny this right to another person.
Nature of Allegations: Both Delhi Chief Minister Arvind Kejriwal and former Jharkhand Chief Minister Hemant Soren are presently facing similar legal battles. Kejriwal was arrested on March 21 in a money laundering case related to the Delhi excise policy. He moved to the Delhi High Court challenging his arrest under the Prevention of Money Laundering Act, which has provision for bail only from constitutional courts.[iii] The High Court had refused his plea following which he had approached the Supreme Court. Succumbing to pressure, and stating no time to hear the entire merits, the Supreme Court granted interim bail to him on May 10th.
Soren is also alleged to be involved in the commission of the offense of money laundering related to a land scam. Bail plea of his was turned down by the Jharkhand High Court after which he knocked on the doors of the Supreme Court. It was the case that the ED had already filed a chargesheet in the trial court against him and therein, it was found that there existed prima facie against him. Coupled with this factor, the lack of national party leadership of Soren and the fact that the election to Jharkhand has concluded reducing his cabinet-campaign potential, compelled the Supreme Court to reject his bail petition. On the other hand, Kejriwal is the head of a national party and elections in Delhi are due to be held, given which the court has decided to grant him interim bail.
Judicial Discretion and Perceived Bias: These two recent, divergent decisions in some very high-profile bail cases have led to apprehensions of possible political bias in the judiciary when it comes to discretionary decisions, like an individual's position and public responsibilities. While wide discretion is allowed to the court on matters like the position and public responsibilities of an individual, differences in the outcomes of several such cases have created perceptions of partiality.
One issue is the apparent unevenness in the treatment of the right to campaign for different political leaders. Everybody—whether representing a national or regional party—is equal before the law and not something that the Supreme Court can discriminate against.
Furthermore, the presumption of a prima facie case is not the same thing as a finding of guilt. In many of these cases—for instance, the Arvind Kejriwal case—trial had not even commenced. Drawing such distinctions seems to be untenable.
What emerges from the above cases is that there needs to be transparency and consistency in bail decisions so that the confidence of the people in the courts is maintained.
Consequences to Fairness and Equality:
Although the judiciary should protect justice, democratic processes cannot become causality in the bargain. While Kejriwal can be freely allowed bail for the election campaign, Soren cannot. This poses serious questions of equal treatment under the same law. Opponents say that such disparities can weaken public faith in the impartiality of the judiciary.
Public and Political Reactions:
The verdict has misgivings among supporters of both politicians. To Kejriwal's supporters, the bail judgment is a victory of democratic activism; for Soren's supporters, it is an injustice and dirty politics played against them. These two disparate judgments are suggestive of a larger dysfunction: the increasing role of the judiciary in matters political.
Conclusion: The judgments of the top court in cases related to Arvind Kejriwal and Hemant Soren brought forth how judicial discretion is intricate and may be controversial. While the bail granted to Kejriwal eased his participation in politics, the denial, in identical relief, to Soren 'reaffirmed' that the judiciary would take a no-compromise approach towards corruption relating to money. The diametrically different endings raised questions about consistency and equability in the judiciary, and whether the political backdrop does influence judicial verdicts.
References:
[i] Prevention of Money-Laundering Act, 2002, No. 15, Acts of Parliament, 2002 (India).
[ii] Prevention of Money-Laundering Act, 2002, § 49, No. 15, Acts of Parliament, 2002 (India).
[iii] Prevention of Money-Laundering Act, 2002, § 45, No. 15, Acts of Parliament, 2002 (India).
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