The Supreme Court on Tuesday disregarded the plea of former Jharkhand chief minister and the working president of the Jharkhand Mukti Morcha party Hemant Soren to be granted interim bail. Instead, it posted the matter for further hearing on Wednesday.
Soren, who had been arrested by the Enforcement Directorate on January 31 for allegedly laundering money after a land grabbing case, was seeking interim bail in order to campaign for his party for the Lok Sabha elections. His lawyer Kapil Sibal has sought to rely on the precedent of the Supreme Court granting interim bail to Delhi Chief Minister and Aam Aadmi Party national convenor Arvind Kejriwal in a money laundering case on May 10.
Though it is notoriously difficult to get bail in a money laundering case, in a first-of-its-kind verdict, the court allowed Kejriwal temporary bail only to campaign for the Lok Sabha election.
The court’s refusal to apply the standard it created less than two weeks ago in Kejriwal’s bail order to a similar set of circumstances in Soren’s case has puzzled observers and legal experts.
Soren’s case
Soon after his arrest earlier this year for his involvement in an alleged land grabbing case, Soren had moved the Supreme Court challenging his arrest.
However, a three judge bench of the court comprising Justices Sanjiv Khanna, MM Sundresh and Bela M Trivedi refused to entertain his petition. It told him to approach the Jharkhand High Court instead.
The High Court had heard Soren’s plea and reserved its judgment on February 28. However, it pronounced its judgment rejecting his plea only on May 3.
In the meantime, on April 24, Soren had filed a fresh petition in the Supreme Court challenging his arrest, citing the delay by the High Court in delivering its judgment.
He also challenged the Jharkhand High Court’s dismissal of his plea before the Supreme Court on May 6.
“Soren was greatly prejudiced by the Jharkhand High Court reserving its judgment on his arrest for over two months,” Delhi-based Advocate-on-Record Prateek Chadha told Scroll.
Kejriwal’s bail order
In parallel, on March 21, Kejriwal was arrested by the Enforcement Directorate in connection with the alleged Delhi excise policy scam.
His plea for interim bail was denied by the Delhi High Court on March 27. The court went on to reject his plea against his arrest on April 9.
The very next day, Kejriwal challenged the High Court’s decision in the Supreme Court.
But on May 10, a Supreme Court bench of Khanna and Justice Dipankar Datta granted interim bail to Kejriwal till June 1, the final phase of the Lok Sabha election. The basis for relief to allow him to campaign for the Lok Sabha election given its “prodigious importance”.
Kejriwal’s status as the leader of a national party justified the “holistic and libertarian view”, the court said, while questions over the legality of his arrest were pending before the court.
The court’s bail conditions barring Kejriwal from visiting the Office of the Chief Minister and the Delhi Secretariat and from signing official files made it clear that the court had granted him bail only in order to campaign for the Aam Aadmi Party in the election.
Such grant of interim bail for the purpose of election campaigning is unprecedented in Supreme Court bail jurisprudence.
Reliance by other High Courts
Since then, this order has been used to their advantage by political leaders in two High Courts.
On May 14, the Punjab and Haryana High Court granted interim bail till June 6 to former Punjab minister and Indian National Congress leader Sadhu Singh Dharamsot to campaign for the election.
Dharamsot too had been arrested in January by the Enforcement Directorate for alleged corruption and money laundering.
On May 16, the Calcutta High Court temporarily stayed a first information report against Bharatiya Janata Party Lok Sabha candidate and former Calcutta High Court judge Abhijit Gangopadhyay in a case of alleged assault at an election rally that he attended.
In its order, the High Court cited the Supreme Court’s interim bail to Kejriwal and Gangopadhyay’s status of Lok Sabha candidate.
Different approach in Soren’s matter
When Soren’s case came up in the Supreme Court n May 13 before a bench of Khanna and Datta, the same bench that granted interim bail to Kejriwal, Sibal cited Kejriwal’s bail order.
However, the court posted the matter for hearing on May 17 in order to give the Enforcement Directorate the opportunity to respond to Soren’s plea.
On May 17, the bench refused to consider Soren’s plea for interim bail. Citing the lack of time for an elaborate hearing, the bench listed the matter for May 21 before a vacation bench comprising Datta and Justice Satish Chandra Sharma. This is because the Supreme Court goes on a summer break from May 18 till the end of June, during which select benches function.
On May 21, the court went into hearing the substantive merits of his arrest, rather than the question of granting him interim bail.
Meanwhile, half of the 14 Lok Sabha seats in Jharkhand have already gone to polls on May 13 and May 20. Elections to four seats will be held on May 25 and the remaining three on June 1.
Even if Soren is granted interim bail tomorrow, he would effectively be able to campaign only for the three seats on June 1, considering the 48-hour silence period before elections during which campaigning is prohibited.
The court’s decision not to apply the Kejriwal bail principle to Soren’s case has left legal experts confused.
Former Supreme Court judge Markandey Katju told Scroll, “The Supreme Court is not following its own judgments”. According to him, as a matter of principle, all bail applications should be allowed, not only to politicians but to all persons accused of offences.
“The only exceptions should be when the accused is likely to abscond or tamper with evidence or influence witnesses or when the offence is a heinous one like rape or murder,” he said.
Supreme Court advocate Shahrukh Alam called the inconsistency “completely arbitrary”. “This goes to affirm that the Supreme Court does not follow its own precedent,” she told Scroll.
