The Grant of Interim Bail To Arvind Kejriwal by The Supreme Court Furthers The Basic Structure Of The Constitution: A Response To Amit Shah’s Comment | Vijay Kumar

Well-strategised, craftily-calculated and assiduously- wrought comment of Union Home Minister, Amit Shah, that people believe that the Supreme Court had favoured Kejriwal by granting the relief of interim bail fills me with a sense of dread and urgency. The Home Minister is extremely selective, as he has conveniently ignored many comments, including editorials of almost all English dailies praising the Supreme Court order. In fact, ‘The Hindu’, while generally endorsing the order, faulted it on the ground of denying regular bail.

Kejriwal was arrested on the night intervening 21-22.03.2024. I had the occasion to argue for his release in my article published in Mainstream on its 23rd March edition under the rubric, The Midnight arrest of Opposition Leader disturbs the rule of the electoral game. I, inter alia, argued :

“Free and fair election has been declared as a basic feature of the Constitution. The legitimacy of an 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 the election, rudely disturbs the political symmetry with ominous implications for the sanctity of the electoral process and democracy.â€

The Supreme Court order is in consonance with my reasoning. That is why I have not written any Article after the order granting relief to Kejriwal. But the tendentious, scurrilous and highly motivated statement issued by the second most politically powerful man in the country has provoked me to pen down my response. The impact on democracy, especially on the level-playing field, is an extremely germane factor for granting bail. The arrest of popular opposition leaders in the thick of the electoral process amounts to flagrant abuse of power, and the constitutional court, especially the Supreme Court, is justified to nix it. In fact, it is the bounden duty of the constitutional court to quash the abuse of power in order to inject the peoples’ faith in the rule of law.

The arrest of Kejriwal at midnight in the middle of the electoral process was unprecedented, and this desiderated the commensurate activism and vigilance on the part of the Supreme Court. Apart from peculiarity, in the form of impact in the general election through the denial of the process of “fair- fighting†, the judgment is grounded in precedents. The Home Minister and his favourite lawyers are conveniently ignoring the unprecedented nature of midnight arrest after the model code of conduct was kicked in and entrenched precedents.

I also argued in my article that the Election Commission of India, in the exercise of its plenary constitutional power, should restrain the investigating agencies from going berserk during the operation of the model code of conduct. As the Election Commission of India failed to live up to its constitutional duty, the Supreme Court was the only forum left for redressing the miscarriage of justice.

The insulated judiciary is the trustee of personal liberty. If the judiciary fails to live up to its task of protecting liberty, there is no other way liberty could be protected. Liberty is encroached upon by the executive enjoying the confidence of the legislature. If the judiciary turns its back on liberty in view of either expediency or strong public sentiment, liberty is completely annihilated and tyranny will replace the rule of law. More than the personal liberty, at the stake is the notion of justice itself. If the people start feeling that their personal liberties cannot be safeguarded by the judiciary, the public discontent is bound to degenerate into bloody upsurge.

The right to life and liberty guaranteed under Article 21 of the Constitution is a facet of the basic structure of the Constitution. This right cannot be suspended even during an emergency after the 44th Amendment. Similarly, the free and fair election is also a vital component of the basic structure of the Constitution which encompasses within its ambit the categorical imperative of “fair-fighting†and “level-playing field†. The arrest of popular opposition leaders in the midst of the election rudely skews the rule of fair fighting and equal opportunity to participate in the election process. Thus, the Supreme Court has lived up to its constitutional duty by granting interim bail to Kejriwal, and by doing so, it has acted in furtherance of the basic structure of the Constitution and Democracy.

(Author: Vijay Kumar, Senior advocate, Supreme Court of India. The author of recent book: ’The Theory of Basic Structure: Saviour of the constitution and democracy’)