Sanjay Singh Bail | Why did the ED 'Concede' Its Case in the Supreme Court?

The ED had, in its favour, the orders of the trial court and Delhi High Court in its favour while denying him bail.

The Supreme Court’s order granting bail to Sanjay Singh, Aam Aadmi Party leader and Rajya Sabha member, raises more questions than a short, two-page order of this kind usually does. 

Singh had been in jail for about six months as the trial court and then the Delhi High Court successively denied his application for bail in the Enforcement Directorate’s (ED) case against him under the Prevention of Money Laundering Act, 2002 (PMLA). Arguments on behalf of Singh began on the morning of 3rd April but by the afternoon of the same day, Singh had gotten bail from the Supreme Court.

From the order, it would seem that bail was granted because ED said it had no objections regarding the grant of bail to Singh. This would be a very surprising turn of developments in any litigation, let alone a high-profile case such as this.

The ED had, in its favour, the orders of the trial court and Delhi High Court in its favour while denying Sanjay Singh bail. Why then did the ED concede its case in the Supreme Court?

And thereby hangs a tale. 

Why the ED Tactically Retreated in the Bail Hearing

The ED’s concession was prompted by an oral observation made by the Supreme Court bench hearing the case. As Singh’s lawyer pointed out, no money had been recovered from Singh so far and even the past statements of the approved had not mentioned Singh. The court pointed out, to ED’s counsel, that since these were not denied by the ED in any way, it would mean that the order granting bail to Singh would put these down as a matter of fact, potentially jeopardising the ED’s prosecution. 

The concession by the ED was prompted by the realisation that the provision of the PMLA that had been used to deny bail in most other cases (including Sisodia’s) could prove to be a double-edged sword. Section 45 of the PMLA, as it stands, states that no court will grant bail to anyone accused of an offence under the PMLA unless the ED’s lawyer has been heard and the court is satisfied that “there are reasonable grounds for believing that he is not guilty of such offence”.

This is in addition to the regular grounds that the accused is not likely to commit any further PMLA offence, won’t be a flight risk and won’t interfere with the course of the trial. Should the SC record that there is no case against Singh while granting, it would be hard to imagine the trial court going ahead to frame charges against him. This is perhaps why the ED beat a tactical retreat in the bail hearing.

However, what this has also done is show up the problem with provisions designed to make it harder to get bail. Section 45 is not unique in Indian law and it is one of many similar provisions in Union and State legislation that make it harder for the accused to get pre-trial bail. Although courts routinely pay lip service to Article 21 and “bail is the rule and jail exception” they have consistently upheld such draconian provisions which make it much harder for the accused to get bail. The reasons for doing so range from the need to fight terrorism, the need to fight drug peddling, and in the case of the PMLA, the need to fight international crime.

In short, any justification offered by the government for making it difficult to get bail in such specialised laws is accepted at face value. 

ED's Withdrawal Leaves Singh in a Strange Position

Upholding these provisions has created additional problems for courts - a simple matter of bail becomes a long out hearing where all the material collected in evidence is gone over in detail. It forces courts to have to make observations on facts that will prejudice the trial one way or the other. This includes poking holes in the prosecution’s theory before the trial has even started, making the prosecution’s case against the accused even harder. Provisions such as Section 45 of the PMLA therefore only strengthen the hands of the State to punish anyone without due process but do nothing for prosecution of crime. 

That said, the SC’s conduct in Singh’s case - prompting the ED to drop its objection to granting bail - is also deeply problematic. It is not the court’s job to offer legal advice or strategic advice to either of the parties. If the court felt that the ED’s case against Singh was weak enough to justify the grant of bail, it should have said so.

To use a cricketing analogy - it’s a bit like an umpire stopping a bowler mid-run up to warn the non-striking batter that they were backing up too far and could be run out by the bowler if they didn’t get back in the crease. Whether or not one questions the impartiality of the umpire one would certainly have questioned the umpire for the serious misjudgement which interfered with the natural course of play. 

This withdrawal by the ED also leaves the case against Singh in a very strange position. Two courts have held that there is some reason to believe that Singh has committed a PMLA offence but the SC has granted bail without setting aside those two orders.

It has tried to have it both ways - grant bail to Singh but not comply with the mandate of Section 45 of the PMLA. It has left the orders of the trial court and Delhi High Court standing denying bail standing but still differed with them in orally saying this is a fit case for bail. In allowing bail in this case, the SC has once succumbed to its innate desire to do panchayati justice instead of justice in accordance with the law.

(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.)