Hemant Soren | Is There a Departure From Previously Stringent Bail Conditions?

The ED opposed the bail plea, accusing his of misusing his position as CM to unlawfully acquire 8.86 acres of land

In recent times, we have witnessed a significant paradigm shift in bail jurisprudence, particularly in cases involving special statutes such as the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA). This transformation reflects a balanced approach, recognising the fundamental rights of the accused while addressing concerns about national security and economic stability.  

Recent landmark judgments, such as the Supreme Court's decision to uphold the bail of Hemant Soren, and the case of Sheikh Javed, where the court emphasised that delays in trials should not bar the grant of bail, underscore this evolving judicial mindset. These decisions signal a departure from previously stringent bail conditions, indicating a nuanced understanding of justice that accommodates both individual liberty and the imperatives of state security. 

On 28 July, the Supreme Court dismissed the appeal of the Enforcement Directorate (ED) which had challenged the Jharkhand High Court’s judgment which had granted bail to Hemant Soren in a matter pertaining to money laundering and an alleged land scam.  

The bench of  Justices BR Gavai and KV Viswanathan opined that the High Court's judgment, which entered the prima facie finding that Soren was not guilty of money laundering, was “very well-reasoned.” When the Additional Solicitor General sought to argue the appeal, Justice Gavai cautioned him and said, "We don't want to observe anything further. If we observe anything further, you will be in difficulty. A very well-reasoned judgment has been rendered by the ld. Judge.” 

The Supreme Court agreed that Hemant Soren deserved to be granted bail. If we, for instance, compare other appeals where the bail order went against the petitioner, one of them would be the bail of Dr GN Saibaba, wherein a special sitting held on Saturday, a division bench comprising Justices MR Shah and Bela S Trivedi of the Supreme Court suspended the order of the Bombay High Court which had discharged/acquitted Saibaba in a UAPA case. 

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The Jharkhand High Court granted bail to Hemant Soren on 28 June. The verdict was reserved in early June where the lawyers representing Soren argued that the charges against him were politically motivated and baseless. The judgment was delivered by Justice Rongon Mukhopadhyay, who observed that after going through the records, it seems that “none of the registers/revenue records bear imprint of the direct involvement of the petitioner in the acquisition and possession of the said land.”  

The ED opposed the bail plea, accusing Soren of misusing his position as Chief Minister to unlawfully acquire 8.86 acres of land in Bargain Anchal, located in the state capital. The ED's counsel presented testimony from witnesses who reportedly confirmed Soren's involvement in the illegal transaction. Additionally, the agency alleged that Soren's media consultant, Abhishek Prasad, admitted under questioning that Soren directed him to alter official records to change the land's ownership details. 

From Soren to Kejriwal, their lawyers’ main contentions were that the arrests were politically motivated to prevent politicians from being a part of the campaigning in the Lok Sabha elections.  

The Supreme Court, while allowing the release of Arvind Kejriwal on interim bail from judicial custody, rejected the contention of the Enforcement Directorate that his release for election campaigning would amount to putting politicians in a beneficial position, compared to ordinary citizens. The bench of Justices Sanjiv Khanna and Dipankar Datta categorically held that ignoring the peculiarities of Kejriwal's case would be wrong, especially in the backdrop of the Lok Sabha elections.

On the same note, the same principle should’ve been applicable in Hemant Soren’s case, but his application was not heard, instead listed on a later date which made it infructuous.

Hence, in Soren’s case, the Supreme Court refused to entertain his petition seeking interim bail for campaigning in the Lok Sabha elections 2024 and challenging the Enforcement Directorate's arrest in a money laundering case related to an alleged land scam in the state of Jharkhand. 

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The table above reflects a flow of events in both Hemant and Kejriwal’s case. At present, Hemant is out of jail and Kejriwal has been arrested by CBI in another matter. 

There has been a lot of development, especially in bail cases where political leaders or activists are the accused. In an important judgment, Parvinder Singh Khurana v. Directorate of Enforcement, the Supreme Court recently held that bail orders should not be normally stayed. The court stated that bail orders can be stayed only in exceptional circumstances, setting aside an order by the Delhi High Court.  

“All Courts have to be sensitive about the most important fundamental right conferred under our Constitution, which is the right to liberty under Article 21,” asserted the bench of Justices Abhay S Oka and Agustine George Masih.

The court held that the power to stay bail orders should be exercised sparingly and only in exceptional cases where a strong prima facie case for cancellation exists, such as cases where bail is granted without recording reasons or where there is evidence of the accused misusing liberty, such as tampering with evidence or threatening witnesses. Further, the courts must record the reasons for granting the stay. 

In India, bail matters are more about discretion and less about jurisprudence because ultimately it is with the court to decide whether it is a fit case for bail or not. We have seen a series of judgments and developments where the courts are no longer convinced by drastic ‘national security or flight risk’ arguments by the authorities. Let us hope that this paradigm shift will be maintained as it is and personal liberty will be taken as the primary consideration in matters relating to bail.

When we talk about judges who stand against authoritarian forces, it is relevant to mention Justice HR Khanna, who was a ray of hope in the dark tunnel during the Emergency in the 1970s.

During the Emergency, thousands of persons were taken into preventive custody and many writ petitions were filed in the nature of habeas corpus, whereas the state contended that during the emergency, citizens did not enjoy any fundamental rights. These rights, including the right to life and personal liberty enshrined in Article 21, stand suspended under Article 359 of the Constitution.

The matter reached the Supreme Court and the judgment in ADM Jabalpur & Ors v. Shivkant Shukla was the outcome. In that case, the main plea of the State was accepted by the Supreme Court by a majority of 4:1. Out of the five judges, Justice HR Khanna was the lone dissenting voice who proved to be a valiant soul and an embodiment of strength and tenacity. In his dissent, Justice Khanna observed: 

"What is at stake is the rule of law…the question is whether the law speaking through the authority of the Court shall be absolutely silenced and rendered mute…” 

Hence, let us hope to see many judges like Justice Khanna, who stood up against injustice, and prioritised the freedom of the people.  

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