Politicians don't enjoy higher immunity than common citizens: Supreme Court on Oppn's plea over CBI, ED 'misuse'

New Delhi: The Supreme Court on Wednesday said that political leaders do not enjoy an immunity greater than an ordinary citizen of the state and they are also not entitled to a higher immunity, while refusing entertain a petition by 14 Opposition parties, led by the Congress, alleging misuse of CBI and ED against opposition leaders and seeking guidelines for the future.

The top court stressed that laying down general guidelines without having relation to facts of a case "will be a dangerous proposition".

A bench, headed by Chief Justice of India D.Y. Chandrachud and comprising Justice J.B. Pardiwala, told senior advocate Abhishek Manu Singhvi, representing the political parties, that political leaders do not enjoy an immunity greater than that of a citizen of the state.

"Political leaders stand on absolutely on the same footing as a citizen of the country, they are entitled to same protection... they are not entitled to a higher immunity what is available (to a citizen)... once you concede that, how can we say that you will not exercise the power of arrest unless three fold step is met...," the CJI said.

Citing statistics from 2013-14 to 2021-22, Singhvi said there is a manifold increase in CBI and ED cases against political leaders belonging to the Opposition. To this, the Chief Justice said that the conviction rate is generally dismal. Singhvi further argued that for the ED, several political leaders have been probed, of which 90 per cent are from the Opposition and added that for the CBI, it is starker -- out of 124 investigations, over 90 per cent were from Opposition.

The bench told Singhvi that he is aware of the fact that these statistics only pertain to politicians, "at the same time you are aware of the fact that guidelines cannot apply only to politicians, because they cannot claim any higher immunity..".

"You are saying that statistics which lie at the foundation of the petition pertain only to politicians, now the cause of action for the intervention of this court is that there is selective targeting of Opposition political leaders by the ruling dispensation...," it said.

As Singhvi agreed to this, the bench noted that the petitioners do not want any special dispensation for political leaders because they are like an ordinary citizen, and they would be subject to laws like any ordinary citizen. It further queried: "How would the court start laying down guidelines with respect to when there is no bodily harm, that the power of arrest would not be exercised..."

Singhvi submitted that the issue is directly related to democracy and level playing field. The Chief Justice then replied: "The moment you say democracy, basic structure, skewed application of law to political leaders, then it is essentially a petition for politicians...".

The bench pointed that this is not a petition by someone who is aggrieved, it is a petition by political parties. "Just because of some figures and statistics, can we say that the investigation should be stopped? Can there be immunity? Ultimately a political leader is basically a citizen. As citizens, we are all amenable to the same law," it noted.

Singhvi clarified that he is not seeking any interference in the ongoing investigation and if the statistics show a harassing effect, "I am only seeking guidelines".

The bench further queried: "You say for lesser offences punishable less than seven years, there should be no arrest, unless the triple test is satisfied", and added there are financial scams of crores, can the court say that because this does not involve bodily integrity, don't arrest?

Expressing disinclination to entertain the petition, the Chief Justice told Singhvi, "you can come back to us even in a single case or a group of cases, where you find a political leader has been targeted... come to us with one or more cases together, we will certainly deal with it. Our problem is, as a Supreme Court, when we start laying down guidelines in abstract context without the facts of a particular case...".

The Chief Justice stressed that there are no facts and how do they start laying down general guidelines or general principles like this, which is divorced from the facts of a particular case.

"If an individual come to us, as so many people come to us, the law which we lay down as the highest court of the country is confined to the facts of the case... on the basis of that law, we can evolve a principle of general application, based on the facts which come before us, but in the absence of specific facts to lay down a general principle of law is a dangerous proposition," he said.

The bench told Singhvi that when political parties argue that there is a chilling effect on the Opposition due to the CBI and the ED cases against the leaders of the political parties, then the answer lies in the political space and not in courts.

After detailed hearing in the matter, Singhvi withdrew the petition and the court dismissed the petition as withdrawn.

The political parties sought guidelines to fulfil and realise the guarantee of personal liberty entrenched in Article 21 of the Constitution, for all citizens, including those targeted for exercising their right to political dissent and for performing their duties as the political opposition.

The political parties forming the petitioners are: Congress, the DMK, the RJD, the BRS, Trinamool Congress, the AAP, the NCP, the Shiv Sena-UBT, the JMM, the JD-U, the CPI-M, the CPI, the Samajwadi Party, J&K National Conference, together representing 45.19 per cent of the votes cast in the last state/UT Assembly elections, and 42.5 per cent of the votes cast in the 2019 General Elections, and holding power in 11 states/UTs.

The plea said that 14 Opposition political parties have filed a petition, in light of the alarming rise in the use of coercive criminal processes against the Opposition political leaders and other citizens exercising their fundamental right to dissent and disagree with the central government.

The plea submitted that investigating agencies such as the CBI and the 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. The petition has been drawn and filed by advocate Shadan Farasat.

"As for 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 be used to meet the demands of investigation," added the plea.