Political parties move SC seeking pre-arrest guidelines for ED, CBI

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“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% in 2005-2014, to 29% in 2014-2022.. Between 2004-14, of the 72 political leaders investigated by the CBI, 43 (under 60%) were from the Opposition of the time. Now, this same figure has risen to over 95%”, the petition submits.

A petition has been filed by 14 opposition political parties before the Supreme Court of India, seeking pre-arrest and post-arrest guidelines for the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) citing arbitrary arrest of opposition leaders.

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

Notably, the plea was mentioned today before CJI Chandrachud by Senior Advocate AM Singhvi who has listed the same for hearing on April 5.

The plea has been filed "in light of the alarming rise in the use of coercive criminal processes against Opposition political leaders and other citizens exercising their fundamental right to dissent and disagree with the present Union Government."

It has been averred that investigating agencies such as CBI and ED are being increasingly deployed in a selective and targeted manner with a view to completely crush political dissent and upend the fundamental premises of a representative democracy.

In this context, certain prospectively applicable guidelines governing the arrest, remand, and bail of persons in offences not involving serious bodily harm have been sought.

For arrest and remand, it has been sought that the triple test be used by police officers/ED officials and courts alike for arrest of persons in any cognizable offences.

"Where these conditions are not satisfied, alternatives like interrogation at fixed hours or at most house arrest be used to meet the demands of investigation", the plea adds.

On the aspect of bail, the petition states 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. 

In case of special laws such as PMLA with stringent bail conditions, 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 complete within 6 months, the accused be released on bail even under special laws unless the conditions in the triple-test are not fulfilled", the plea submits.

The petition has been drawn and filed by Advocate Shadan Farasat.

Case Title: Indian National Congress & Ors. vs. Union of India & Ors.