Kejriwal's Arrest and Bail is a Case of Near-Unlimited Discretionary Power

How do we make sense of the Supreme Court’s order granting interim bail to Arvind Kejriwal till 1 June? 

There are three possible ways.

One way is to see it purely from the view of political implications – this is a “win” for the Aam Aadmi Party (AAP) and the Indian National Developmental Inclusive Alliance (INDIA), and therefore a “defeat” for the ruling Bharatiya Janata Party (BJP) and the National Democratic Alliance (NDA).

It’s no secret that the AAP-led government in the NCT of Delhi and the BJP-led Union government have been at loggerheads over everything since pretty much 2014. Kejriwal’s arrest and his subsequent release by the SC is, therefore, just one more round of battle in the no-holds-barred war between the two. Kejriwal will be free to campaign in the upcoming Lok Sabha elections in Punjab and Delhi. 

This is an unsatisfactory way to view this. It turns politics into a sport where the public instead of being active participants are just merely spectators picking sides and cheering when “their” side wins. This politics as sport approach where every move is seen purely as a win or loss for one side with no attempt to understand why it’s happening and how to make sense of it.

The SC is an independent, impartial institution when its actions result in a "win" for “our” team, and it’s a captured, craven stooge of the government or “entrenched interests” when it gives a “loss” to “us”. Such partisanship, like hard-core sports fandom, is toxic, and in the context of politics, actively bad for the nation. 

Viewing it From a Purely Legal Perspective

Another way to view this is purely from the lens of the law and the Constitution.

This requires us to actually read the text of the order of the court and see if it makes sense from this perspective. Justice Sanjiv Khanna and Dipankar Datta’s order granting interim bail is relatively succinct – about 2,000 words or so – cites precedent and gives cogent reasoning one would think for why Kejriwal should be given interim bail. The law stated in the judgment is well settled – interim bail is a matter of discretion for courts and courts should exercise their discretion based on the totality of the facts before them.

The factors which weighed in favour of Kejriwal – that he’s a sitting CM, leader of a national political party, has no criminal record and elections are underway – are balanced with the factors which go against him – that investigation into the offence of money laundering and corruption is ongoing and he has not been fully cooperating. The court imposes conditions to ensure that the investigation (such as it is) is not impeded by the interim bail.

This, however, is limiting in its own way. We are no wiser as to why the SC heard arguments for nearly four days before it passed this order. We don’t have any idea whether Kejriwal’s arrest was legal or not and we’ll only know post-June. We are no wiser as to whether the long-running investigation into the so-called liquor policy scam is any closer to conclusion or will continue as long as the powers that be need it to. 

This brings us to the third way of viewing it – as the result of a certain kind of criminal justice system we have given ourselves.

No Consequences for Any Authority That Exercises Discretion to Favour the Ruling Regime

Indira Jaising explains this succinctly in the context of Kejriwal’s arrest and interim bail. Laws that reverse the burden of proof on the accused, laws that demand the accused practically prove innocence before granting bail, and a system where judges are incentivised to be “strict” with bail orders all result in a system where jail is the rule and bail is the exception. As she puts it – “Kejriwal has got bail but the criminal justice system continues to be broken”.

While she has described the symptoms very accurately, her diagnosis is where I disagree – the system has worked exactly as intended. The criminal justice system that India has today is the system inherited from colonial times as a tool of state control of the populace. On the face of it, it is all rules and procedures and seems like an improvement from the arbitrary, despotic or caste-based systems of justice that existed before.

That doesn’t necessarily make it a system that promotes liberty and the rule of law. At the heart of the system is the near-unlimited and unaccountable discretionary power given to the police, the prosecution, and the judiciary. This discretionary power was supposed to be exercised by colonial authorities who shared the interests of perpetuating the ruling regime and the regime would protect them if they acted so.

There are virtually no consequences for any authority that exercises discretion to favour the ruling regime – whether it’s the police officer who proceeds to arrest or the magistrate who denies bail. For all its claims about Article 21 and the right to life and liberty, the SC is also content to let this system continue. It fully accepts this logic of unaccountable discretion at other levels because this is exactly what the court itself does in matters before it. 

75 years and more post-independence, the vast majority of Indians continue to see this system with fear and revulsion. Its wrongs are a daily reality to them. It is only when the privileged minority (such as Kejriwal) is at the receiving end of it that the “flaws” become topics of discussion and “flaws” are unearthed to be fixed.

(Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy in Bengaluru. He is also a member of the Executive Committee of the Campaign for Judicial Accountability and Reforms. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)