The Supreme Court on Wednesday granted bail to former Union Finance Minister P Chidambaram in a money laundering case filed by the Enforcement Directorate. One of the conditions it laid down was that he refrain from making statements or giving interviews to the media regarding the case.
The case relates to the clearance given to INX Media by the Finance Ministry’s Foreign Investment Promotion Board for receiving overseas funds to the tune of Rs 305 crore in 2007. Chidambaram was the finance minister then and investigative agencies have alleged that the decision helped his son Karti Chidambaram launder money.
Chidambaram had already secured bail in a related case filed by the Central Bureau of Investigation. With the Supreme Court granting him bail in the case filed by the Enforcement Directorate, he is likely to walk out of the Tihar jail on Wednesday evening after spending over 100 days in custody.
In all, the court has imposed five bail conditions on Chidambaram, including a bond of Rs 2 lakh with two sureties, restriction on travelling abroad without the permission of the trial court handling the cases, and no interviews or statements to the media regarding the case.
It is not clear what necessitated the “no interviews” stipulation. The order does not explain the need for such a restriction, which as a condition for bail is quite unusual.
The effect of such a gag order is a partial suspension of a person’s fundamental right to speech. While the accused may choose to avoid comment on the cases in which they are implicated to not be seen as influencing the court or public opinion, for the court to make such restraint a condition for liberty amounts to asking a person to choose between two fundamental rights.
What the order says
There are several significant elements to the court’s order on Wednesday. First, the three-judge bench led by Justice R Banumathi set aside the Delhi High Court order that dismissed Chidambaram’s bail application last month. In doing so, the court said while economic offences are indeed grave, the High Court cannot adjudicate on the merits of the case when deciding on a bail application.
Chidambaram’s lawyers had contended that the Delhi High Court, by extensively commenting on the evidence produced by the agencies, had prejudiced the senior Congress leader even before the trial could begin.
Second, the Supreme Court questioned the use of evidence under sealed covers produced by the investigative agencies to decide on bail applications. Both in the High Court and the Supreme Court, the probe agencies submitted some evidence that they had gathered in sealed covers to help the courts assess the gravity of the offence committed by Chidambaram.
The Delhi High Court opened the sealed cover and analysed the evidence. On Wednesday, the Supreme Court indicated this was not a healthy habit, though the bench too had to examine the evidence much in the same way, even as it was sitting on appeal over the High Court decision.
On the subject of sealed covers, the Supreme Court said:
In that circumstance though it is held that it would be open for the Court to peruse the documents, it would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail.”
After establishing that Chidambaram was not a “flight risk” and would be available for the investigation and for appearance during the eventual trial, the court decided to grant him bail.
However, the restriction that the court imposed on Chidambaram for the bail is clearly unreasonable as it curbs his fundamental right to speech.