The chilling effect of the Prime Minister’s intervention on the arrest of opposition leaders on the eve of 2024 elections | Vijay Kumar

When Arvind Kejriwal, the Chief Minister of Delhi, was arrested in the middle of the election, many advocates, including this writer (Mainstream, 23rd March), political scientists and other intellectuals wrote their columns expressing their concerns over legality, desirability and propriety of the arrest of the opposition leaders in the thick of the election. These were the opinions articulated by these writers. It was perfectly open to the supporters of the BJP to indulge in cerebral contestation and intellectual refutation. But something grotesquely bizarre happened, 600 advocates – endorsed by Harish Salve, a friend of Prime Minister Modi – wrote a letter [1], [2] to the Chief Justice alleging that opinions expressed against the arrest of Kejriwal were triggered by desires to influence the judiciary. The letter written by the clique of the BJP did not even make any attempt to meet the argument. No sooner had this letter been released, then Prime Minister Modi issued a statement, while seconding the contents of the said letter [3] , that an attempt is being made to force the judiciary i by the Congress Party on the issue of the arrest of Kejriwal. So far as Congress and other opposition parties were concerned, they were equally entitled to express their views. Instead, the cheerleaders of the BJP indulged in ad hominium attack, and to compound the problem, Prime Minister jumped the gun. In the process, Prime Minister Modi has cast aside the neutrality of his high office.

On the one side, there are 600 Lawyers taking brazenfacedly partisan stand and, on the other side, there are independent Lawyers, Political Scientists, Intellectuals and Journalists articulating their concerns for the arrest of the opposition leaders after the model code of conduct has kicked in. By granting his own imprint, the prime minister has taken the side of a partisan group.

The Government and BJP have been maintaining that “law has taken its course†. ‘If the law has taken its course’, then the judicial process, too, will take its own course. Our judiciary is too independent and strong to be swayed by either view; criticizing Kejriwal’s arrest or justifying it. None of the view can be characterized as an attempt to pressurize the judiciary. Far from “law taking its own course†, lending his name to the letter written by 600 Advocates by Prime Minister Modi is calculated to browbeat the judiciary and interfere with the administration of justice.

The alacrity with which the prime minister intervened by batting, rather aggressively, in favour of the letter written by 600 Advocates has disturbing implications for the Rule of Law and Democracy. The very fact that the prime minister has discarded the neutrality of his office is an unmistakable pointer to the fact that he had an interest and effective say in the arrest of opposition leaders. Thus, the existence of bias unmistakably comes to the fore. It is true that it is next to impossible to establish malafide on the part of Prime Minister Modi and the fact of the Enforcement Directorate “acting under his dictation†, yet the prime minister’s endorsement provides an important context and circumstances for the existence of ulterior motive for the arrest of opposition leaders.

There is no dearth of instances in recent times when the Prime Minister went overboard in praising the Supreme Court when critical political issues were adjudicated in his government’s favour. Two notable instances are Ayodhya and Abrogation of Article 370 judgments. When adjudication by the court goes in favour of the government, Prime Minister himself lapped it up, and when the adjudication goes against the Government, like outlawing Electoral Bond Scheme, the Prime Minister is alleging that the court is being controlled by vested interests. This is a sheer double standard, besides being wholly unintellectual.

(Author: Vijay Kumar is senior advocate at the Supreme Court of India and is the author of a recent book “The theory of basic structure:saviour of the constitution and democracy†)