Arvind Kejriwal's Bail: What Happens When a Trial Court Walks the Liberty Talk

The High Court's unreasoned stay on the order is a message to the trial court that it is all but an ED rubber-stamp.

Arvind Kejriwal. 

(Photo: PTI)

On the 16th page of her order granting bail to the Delhi Chief Minister, the vacation judge of the Rouse Avenue district court alludes to a CBI Day speech made by the present Chief Justice to India. The duty of a special judge hearing CBI and ED cases is ‘difficult and cumbersome’, the order records, and then takes a cue from the ‘encouraging remarks’ of the CJI to proceed with its decision on the limited aspect of bail to the Chief Minister.

Even otherwise, as a number of his public speeches would exhibit, the Chief Justice has routinely lamented the reluctance of lower courts to grant bail to under-trials whose guilt is yet to be decided. That our judicial magistrates form the first line of defence against unjust curtailment of personal liberty is one of the glorious lost promises of India’s constitutional law theory.

For reasons largely attributable to this judicial apathy which deeply pervades our lower judiciary, the evening of 20 June rang in a major surprise for those paying attention — a vacation bench of the trial court hearing Arvind Kejriwal’s regular bail application (which forms a part of arguably the most political and bitterly contested litigation of this year) granted bail to the Delhi Chief Minister.

What astonished most people was that this bail application was heard and allowed even in the face of Section 45 of the Prevention of Money Laundering Act, 2002, which imposes an unreasonable obligation of proving innocence for procuring bail under the PMLA regime. What is more, the trial court had not even allowed a day to pass while seized of the matter upon conclusion of arguments; hours after reserving the order, bail was granted in open court.

While this news engulfed social media, even to those who could not help but marvel at this welcome departure by a trial court, what had happened appeared too strange to be true. And yet, stranger things happened in the Delhi High Court the next morning to restore normalcy to a capricious bail culture thrown off balance without notice by a vacation judge.

‘Full Opportunity’ and an Unreasoned Stay

As soon as a vacation bench assembled in Court 10 of the Delhi High Court the next morning, counsel for the Enforcement Directorate mentioned its appeal against the bail order. The order had been passed less than 24 hours ago; in the words of the ASG himself, the ED neither had a copy of the order nor was aware of the conditions of the bail. Ordinarily, appeals against orders granting bail are not treated to be urgent; in fact, such orders rank quite low in the list of precedence of matters. Besides, this mention was being made before a vacation bench and not a designated criminal roster of the Delhi High Court, which was still 10 days away from reopening and regular functioning.

The ED’s main pitch for the urgent mentioning was that the prosecution was not given 'full opportunity’ to oppose bail; it formed a part of the public record, however, that the ED had submitted at length before the trial court. Ideally, the High Court should have tried to ascertain the prosecution’s idea of what constituted a ‘full opportunity’ before allowing the mentioning; instead, it listed the matter for hearing even without the benefit of the case file. The court did not forget to clarify that the bail will not be given effect until its final order. A couple of hours later, the matter was taken up for hearing.

More than the merits of the appeal, the ED’s demeanour in the hearing merits a discussion. In his submissions before the High Court, counsel for the prosecution unleashed a tirade against the ‘perverse’ bail order which, on occasions, bordered close to a personal criticism of the vacation judge. Expressions of shock and horror were repeatedly employed to emphasise that the trial court did not make an effort to go through and consider the ‘relevant’ material; the tenor of the arguments suggested that the idea of grant of bail under the PMLA by a trial court was all but inconceivable.

During the course of the hearing, the ED’s idea of ‘full opportunity’ also became a lot clearer. At around 2:45 PM, it appeared that the initial forcefulness in the prosecution’s submissions had weathered down. By this time, the counsel for the ED had already argued for more than an hour on his stay application, and the High Court attempted to summarise his submissions and enquired if his arguments were over. ‘I have several other points to argue’, the counsel for the ED replied.

In his opinion, the court would be shocked to see the ‘facts’ as to how the offence of money laundering had been committed. A few minutes later, when Mr Kejriwal’s counsel enquired if the prosecution counsel was done with his submissions, the counsel reiterated that his arguments were not complete and that he could ‘go on and on’. Around 3 PM, the prosecution finally concluded its arguments.

These exchanges underscore a very important aspect of the manner in which the ED builds its case against an accused: a sea of documents are hurled at the court all of which are ‘relevant’ and ‘shocking’; the arguments are never ‘over’ and there’s always something more to say. In many of its cases, the ED falls back on the breadth-less volume of its ‘case’ to press incarceration of the alleged perpetrator. The trial court order granting bail to the Chief Minister did not only see through this legal obfuscation; it also pointed out the apparent bias in the dealings of the ED. The investigative agency had been rattled by a trial court after a very long time.

At the end of the day’s hearing, the High Court reserved its verdict on the stay application and said that it required two to three days to pronounce an order. Till such pronouncement, the operation of the bail order was stayed. No reason for such a stay was accorded in the order. The High Court had moved with great alacrity to undo a rare act of upholding of liberty by a trial court.

But postulate this for a minute: if the stay application is not allowed by the High Court, the counsel for the prosecution may very well petition the Supreme Court on the ground that he was not given ‘full opportunity’ in the High Court. Remember, he had said he could go on and on.

A Message to Trial Courts Across the Country

The trial court order granting bail to the Chief Minister is the definition of a model bail order. Even as the order takes into account facts germane to the bail application, it steers clear of the ED’s attempt to drown the court into documents. It is short, lucid, and relies on a 182-pager reply of the ED to record its submissions against the CM’s release.

The order explicitly records the ED’s failure to trace the larger portion of the alleged siphoned amount as well as its refusal to specify a time period for the completion of such tracing.

It does not fall for the ED’s extra-legal claim that the crime is so sinister that it would require a never-ending investigation and indefinite custody of the accused by the agency to get to the bottom of the conspiracy. In doing so, it downplays the draconian nature of the PMLA to prioritise liberty over an investigative agency’s wild goose chase.

What has happened in the wake of the order, however, explains why a trial court would be reluctant to stick its neck out and exercise discretion in favour of personal liberty in politically sensitive matters. Since the order granting bail has been uploaded, an army of social media trolls has been systematically unleashed against the trial court judge.

Questions have been raised about her integrity, and X accounts with extensive following have called for her removal. Her only ‘mistake’ is that in granting bail to the CM, her order is faithful to the Constitution, and not to the unconstitutional rigours of the PMLA.

The High Court’s complete silence, even as the ED bludgeoned a court order which was not even a day old, and its subsequent unreasoned stay of such order has only emboldened these voices. It sends out an unequivocal message to special courts hearing CBI and ED cases across the country: a trial court is all but an ED rubber-stamp authority. Any talk of liberty is simply a hogwash.

(Harshit Anand is an advocate practicing at the Supreme Court of India. He tweets at @7h_anand. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)