14 Oppn Parties Move: "Raids a Tool of Harassment" SC Wants ED, CBI Pre-arrest Guidelines

As opposition leaders have been arbitrarily detained by the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED), fourteen opposition political parties have petitioned India's Supreme Court for pre-arrest and post-arrest rules.

The petitioners are: Congress, Dravida Munnetra Kazhagam (DMK), Rashtriya Janata Dal, Bharat Rashtra Samithi (BRS), Trinamool Congress (TMC), Aam Aadmi Party (AAP), Nationalist Congress Party (NCP), Shiv Sena (UBT), Jharkhand Mukti Morcha (JMM), Janata Dal (U), Communist Party of India (Marxist), Samajwadi Party (SP), J&K National Conference.

Senior Attorney AM Singhvi presented the case before CJI Chandrachud on Friday, and the date for the hearing has been set for April 5.

The petition has been made "in view of the worrying increase in the use of coercive criminal proceedings against Opposition political leaders and other persons expressing their basic right to dissent and disagree with the current Union Government," according to the statement made in the plea.

THREE TESTS

Investigative agencies like the CBI and ED are allegedly being used more often in a selective and targeted way with the goal of entirely suppressing political opposition and overturning the tenets of a representative democracy.

With the action rate on raids, or the number of complaints made as a result of raids, falling from 93% in 2005-2014 to 29% in 2014-2022, there is clearly a tendency toward employing ED raids as a tactic of harassment. 43 (less than 60%) of the 72 political figures the CBI looked at between 2004 and 2014 belonged to the opposition at the time. Today, this same percentage has increased to almost 95%," read the petition.

In this situation, some potentially applicable rules controlling the detention, release on bond, and arrest of individuals charged with crimes that do not include substantial bodily injury have been requested.

It has been requested that the triple test be used to arrest and remand decisions by courts, ED officials, and police officers for any cognizable offenses.

The plea agreement states that when these requirements are not met, "alternatives such questioning at regular hours or at most house arrest be employed to fulfill the needs of inquiry."

BAIL IS THE RULE, JAIL IS THE EXCEPTION

Regarding bail, the petition demands that all courts adhere to the maxim "bail as rule, prison as exception," particularly in situations where non-violent offenses are claimed, and that bail be rejected only in circumstances when the aforementioned triple-test is satisfied.

The petitioners ask that strict bail requirements under special legislation like the Prevention of Money Laundering Act of 2002 (PMLA) be aligned with Article 21 of the Constitution.

Hence, "where it seems that the trial is unlikely to be finished within six months, the accused be freed on bail even under special legislation, unless the criteria in the triple-test are not satisfied," the plea contends.

Advocate Shadan Farasat drafted and submitted the petition.