Who dare question judicial prudence? | Faraz Ahmad

The general elections commence from April 19, in the midst of the BJP ruled government’s tremendous effort to paralyse any opposition worth the name.

There is an oft quoted statement in legal circles regarding the majesty of law attributed to a seventeenth century English Churchman Thomas Fuller, which says “Be you ever so high, the law is above you.” The single judge bench of Delhi High Court chaired by Justice Swarna Kanta Sharma delivering an order on Delhi chief minister Arvind Kejriwal’s bail plea evidently upheld this majesty of law. But one wonders if the height of a person is restricted only to the level of the chief minister and that too an Opposition leader? Or would the upholders of law be so good as to remind this to the highest in India?

On Tuesday, April 9 Justice Sharma rejected the bail plea of Delhi chief minister Arvind Kejriwal, dismissing the Defence argument that while the Enforcement Directorate (ED) has not established any money trail leading up to Kejriwal, the money trail to the BJP is evident with one of the accused in the excise policy case, P. Sarath Chandra Reddy against had purchased and given electoral bonds worth Rs 60 crore to the BJP, after which he was bailed out, establishing a quid pro quo. Former Delhi Deputy chief minister Manish Sisodia and now bailed out Rajya Sabha MP Sanjay Singh are also implicated in the same case along with Telangana/Bharat Rashtra Samiti (BRS) MP K. Kavitha, (now in custody).

Justice Sharma who had suspended the verdict after the conclusion of the arguments on April 3, delivered her judgement almost a week later.

Dismissing the Defence charge of a deep conspiracy of the ED in forcing accused after keeping them in custody for months and releasing them only after they agreed to turn approvers against Kejriwal and other AAP leaders in the Delhi excise policy case, Justice Sharma stated, “This court holds that to doubt and cast aspersions regarding the manner of granting pardon or recording statement of approver amounts to casting aspersion on the judicial process since granting of pardon or recording of statement of approver is not domain of investigating agency. It is a judicial process where a judicial officer follows the provisions of Section 164 of Cr.P.C. for recording the statement of an approver and also for granting or not granting pardon to such approver” adding that an approver is an individual who provides crucial evidence against a co-accused in exchange for leniency/immunity from prosecution. “However, it is the court of law which evaluates credibility and relevance of evidence presented by approver and determines whether to accept testimony or not in the relevant stage of the trial. Similarly bail, which entails release of the accused, pending trial, is a judicial prerogative. Without challenging the said process to hold that the statement of approver and pardon granted to them at the behest of ED will be questioning the judicial process which is governed by law and not by any government or investigating agency.”

On the question of non-supply of documents and earlier statements of approvers, the bench said that this question does not arise now as these “documents are not required to be supplied at the stage of arrest or remand” and Kejriwal will be entitled to documents that were relied upon at the “appropriate stage of trial.”

On Kejriwal’s bid to establish before Justice Sharma’s court the quid pro quo in the case of an accused Magunta turning approver and thereafter his father being given a ticket to contest the upcoming parliamentary elections on BJP led alliance, and the other accused Sarath Reddy paying Rs 60 crore in electoral bonds to the BJP, the court said, “Who gives tickets to contest elections to whom or who purchases electoral bonds, is not the concern of this court…” In an ideal situation Justice Sharma deserved to be commended for reiterating the principle, ‘Be you ever so high the law is always above you’ in denying bail to a sitting chief minister of the national capital, Arvind Kejriwal.

On 16 February, Justice Swarna Kanta Sharma issued notice to the Delhi Police responding to NewsClick founder Probir Purkayastha, plea challenging the First Information Report (FIR) registered against him under the anti-terror law UAPA. which alleged that his portal Newsclick was "spreading" pro-China propaganda. Justice Sharma issued the notice in the face of Delhi Police’s gumption to suggest to the bench not even to issue a notice to it. To which Justice Sharma said to the Delhi Police counsel Zoheb Husain, using all her powers of persuasion and reasoning "See, If I will not issue a notice to you (Delhi Police), then how will I look into your reply? Just now you mentioned a subsequent development, how will I read that? You’ll have to put that also for me. "What difference does it make if I issue a notice to you, so that you can file a detailed reply along with the documents you want to rely on? Let us just issue notice." And then fixed 10 July for the next hearing of Purkayastha’s plea.

No doubt the Newsclick, an independent portal, has been running news stories and analyses oft times critical of the Modi led BJP government, which is the job of any journalist or a news agency/publication or channel. Does that amount to an anti-national act? Probir was arrested on October 7 last year from his premises and the Newsclick office in Saidul Ajaib sealed on this specious charge of being anti-national, now so common among government agencies targeting critics of Modi and his government. More than four months after arresting Probir Purkayastha, a much-venerated journalist in academic and media circles, the Delhi Police brazenly resisted Justice Sharma’s intent to issue even a notice to give their version of why they have arrested Probir. But instead of chiding or pulling up the Delhi Police counsel, the single member bench is so appreciably persuasive in appealing to the Delhi Police to at least allow her to issue a notice and then sets the next date of hearing five months later on 10 July. In effect it is evident at the pace of movement of this case that any decision, even dismissing Probir’s plea by the Delhi High Court is unlikely to be decided before he completes at least one year in prison. And mind you neither Probir, nor Kejriwal, nor Sisodia or for that matter Umar Khalid having served a jail term of more than four years, are convicted yet. However, of these only two Probir and Kejriwal are in Justice Swarna Kanta’s court.

There is a veteran politician from Odisha named Dilip Ray. He was the founder member of Biju Janata Dal (BJD) in effect breaking the Odisha unit of Janata Dal and forming a regional party in the name of Janata Dal’s tall leader Biju Patnaik, whose son Naveen still rules Odisha as its chief minister also heading the BJD. Dilip Ray’s main effort was to drag BJD closer to the BJP and in that effort he achieved notable success. In return, he held several important positions in the BJD and also in Atal Bihari Vajpayee’s government as a Union Minister. It is in relation to his charge as Union Coal Minister that the investigating agencies accused him of ‘coal scam’ in 1999 in the second NDA government. In October 2020 a trial court awarded him six years’ sentence on corruption charges and thus disqualifying him from contesting or being a member of any legislative assembly or Parliament. And Dilip Ray did not even challenge the trial court verdict for four years. But with the elections approaching he appealed against that in the Delhi High Court.

BJP’s most important leader from Odisha Jual Oram who will be contesting from Sundergarh Lok Sabha seat in the coming elections, has announced that Dilip Ray will be BJP candidate for the Rourkela Assembly seat in the forthcoming elections. But then he is convicted and disqualified!

On April 9, the day Justice Sharma dismissed Kejriwal’s bail plea, she stayed Dilip Ray’s conviction considering his ‘advanced age’ that he is already 71 years old and unless his conviction is stayed his 35 year-long political career will be adversely affected, enabling him to contest the forthcoming elections.

In her order Justice Sharma stated, “In view of the fact that the conviction of the present applicant if not suspended would lead to an irreversible consequence, if he is acquitted at a later stage, this court is inclined to allow the present application. In view thereof, it is directed that the conviction of the present applicant, recorded in judgment dated 06.10.2020, shall stand stayed”.

(But even Kejriwal could be acquitted at a later stage?) The court in its order said, “He (Ray) is 71 years of age and wishes to contest elections to be held in the month of May, 2024, and serve his constituency and the country. It is not as if he has expressed his desire to do so only for the purpose of suspension of his conviction by contesting the election for the first time. He has a political career running into more than 35 years…”

It further said, if Ray’s prayer is not allowed, he will lose the “chance to contest election and an irreversible consequence and irreversible damage to his political career and desire to serve his constituency will be caused to him”.

How very considerate and compassionate the court has been in appreciating the concerns of a 71-year-old veteran politician.

But why this extraordinary concern for an ageing politician? Is it because he is a BJP politician? In the two cases cited above, both are not yet convicted. They are merely accused by the investigating agencies of committing a perceived offence. One of them Probir, a much-respected independent journalist, is much older than Dilip Ray. The other, Kejriwal heads a popular political party and the Delhi government and all the so-called witnesses have recorded their statements, according to the Delhi High Court. Their careers are also at stake. In fact, most critics believe that the Delhi Police and the CBI in the two cases respectively, have acted at the behest of this Government to jeopardise their respective journalistic and political career and in Kejriwal’s case to leave his party leaderless and rudderless paralysing its bid to contest the 2024 general elections. But they have to wait to cross examine the witnesses only when the trial takes place, which considering Umar Khalid’s case may not take place for years on end.

But who can question judicial prudence. It is the discretion of the court to examine each case on its merit.