It was on 21 August that P. Chidambaram was arrested in the INX Media case. He was sent to judicial custody later, after prolonged custodial interrogation. The allegations relate to anomalies in the clearance given by the Foreign Investment Promotion Board in 2007 while Chidambaram was the Finance Minister. Whatever the merits of the case might be, there are other aspects of grave concern for both Indian politics and judiciary.
Curbing the opposition
Governments with a strong majority, such as the current one, often tend to ignore the basic principles of political design and function. Politics is a product of concerted actions and different views. It is deliberation, compromise, and collaboration of the highest quality. The significance of opposition parties in enhancing the pluralistic character of the political process cannot be overlooked. The contribution of opposing ideas is what makes politics truly engaging and democratic.
It is in this context that the arrest of Chidambaram must be analysed. In some European countries, parliamentarians are immune from arrest while serving their term. In Germany, Article 46 of the Constitution expressly prohibits arrests of members of parliament in criminal actions, with few exceptions. For initiating actions against serving members, the parliament has to concur by an elaborate voting procedure.
These protection clauses serve a salutary purpose: they ensure that majoritarian governments are not armed with arbitrary powers of arrest of those who disagree with them. The informal norms of politics such as respect for the opposition, internal democracy and fairness will persuade politicians to not misuse their position for political needs.
The arrest and the subsequent judicial custody of Chidambaram point to both problems in Indian politics: the decline of informal norms complemented by the absence of sufficient immunity for parliamentarians. The disproportionate and conspiratorial use of the state machinery to target a man in public life clearly illustrates abuse of power.
Among all the constitutional values that the court proposes to preserve, individual liberty is primal. A court that cannot guarantee the freedom from arbitrary arrest has considerably failed in its function. Institutional integrity must be tested not in times when there is no threat to civil liberties, but when those are about to be taken away by the political executive. As Woodrow Wilson famously said, "the history of liberty is a history of limitations of governmental power, not the increase of it".
Hours before the arrest, a request was made before the Supreme Court seeking an early hearing of the bail plea of Chidambaram, which was simply declined by the court. By doing so, the Supreme Court denied itself an opportunity to examine its own earlier pronouncement. The principles of law in the matter of pre-arrest bail are well settled. In SiddharamSatlingappa v. State of Maharashtra (2010) the court explained the scope of section 438 of the Criminal Procedure Code that deals with the court's power to grant pre-arrest bail. The court held that for grant of anticipatory bail, "there is no requirement that the accused must make out a 'special case.' It was held that the "arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of the case", since, "personal liberty is a very precious fundamental right."
Considering the inordinate delay in registering the First Information Report (FIR) and the apparent fragility of an accusation based on an approver's narrative, pre-arrest bail should have been granted. Satlingappa, in this context is a binding precedent especially as it relied on an earlier Constitution Bench decision in GurbakshSingh Sibbia (1980). Sibbia said that in an application for pre-arrest bail, the court is dealing with an individual, "who is entitled to the benefit of the presumption of innocence, since he is not, on the date of his application convicted of the offence in respect of which he seeks bail."
The Supreme Court failed on various levels. It omitted to have a timely examination of the issue. The top court, in effect, allowed the consequences of the egregious folly of the Delhi High Court judgment to follow. The Delhi HighCourt judgment contained "findings" which were unwarranted in an order declining anticipatory bail, that too in a case where the investigation was yet to be completed.
The Supreme Court also implied that the individual's right to seek pre-arrest bail should give way to the power to arrest, in an economic offence. This would set a dangerous precedent. The moment liberty was restricted without fair procedure damage was caused to both the institution and the individual. The individual was stripped of his right to personal liberty, the most valuable of all fundamental rights. Further, the indifference of the judiciary weakens the hope that the courts will step in to protect rights when other political institutions fail. The purpose of post interrogative detention in the instant case is extremely unconvincing, at least in the legal sense.
Cindy Skach reiterates a significant question posed by Walter F. Murphy in the latter's book 'Constitutional Democracy: Creating and Maintaining a Just Political Order' (2007): "Can constitutional design affect the quality and stability of democracy? Are certain constitutional configurations better than others at fostering and maintaining just political orders?" (International Journal of Constitutional Law, Vol. 7(1), 2009).
But the reverse is also equally true. A constitution cannot function well in a political system ridden with malice and intolerance. For the constitutional design to emerge and sustain, the quality of politics matters enormously. As Learned Hand, an American judge said: " …a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save.."
(Kaleeswaram Raj and Thulasi K.Raj are lawyers in the Supreme Court of India)
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