Will Delhi Chief Minister Arvind Kejriwal gain electorally with his interim bail? Did Prime Minister Narendra Modi take the wrong step with the ill-timed arrest of Arvind Kejriwal? Did the Supreme Court do the right thing in temporarily releasing the Delhi Chief Minister? The first two questions will be answered on June 4, 2024, when the results of the Lok Sabha elections are out. So, that leaves the third question which is the issue of the Supreme Court order granting Arvind Kejriwal limited liberty to campaign for his party and poll partners till June 1, a decision that must be lauded.

This decision of the Supreme Court is a proud moment for the country, for the rule of law, and above all, for democracy. Here’s why: before this ruling, the Supreme Court had in two watershed judgments, spoken stridently to uphold our most fundamental value, democracy. The first such ruling may not have been nationally consequential when it struck down and removed the illegally elected BJP mayor of Chandigarh and described the process by which he was surreptitiously elected as a “murder of democracy.” This utterance by the Chief Justice of India must resonate in the hearts and minds of everyone who values freedom. 

The next judgment by the full bench of the Supreme Court was to declare the electoral bond scheme unconstitutional, again thereby upholding the democratic principles of our polity, the fundamental right of Indian citizens to receive information vital to the governance of the country. 

Bail for Kejriwal

So why should the temporary bail given to Arvind Kejriwal be bracketed with the earlier two rulings? And have the same degree of significance and importance as the earlier two momentous rulings? It’s simply because the foundation of the release order is the same, namely in the interest of fair and free elections, a principle that’s inalienable to our liberty.

Contextually, it’s important to grasp the jurisprudence underlying bail. Every crime committed by a person is in theory a crime against society. The community in which a crime is perpetrated must be protected from a person with such a propensity. But arresting someone suspected of a crime is not the same as proving that the crime has been committed. The accused, however strong the suspicion and however grave the crime, is nevertheless presumed to be innocent until proven guilty at a trial. It’s keeping the presumption of his innocence in mind that the law allows him to be released on bail so that he’s free to defend himself effectively. Denial of bail irrespective of the nature of the offence is to punish the accused without a trial. Thus, whether an accused is entitled to bail must necessarily depend on a variety of circumstances that the judge in his discretion evaluates to grant or deny bail.

Even in suspected murder cases, bail may be granted where the judge feels that the totality of the material or evidence produced by the prosecution is riddled with contradictions, thus providing the accused with a probable defence at his trial. No straightjacket or formula governs the exercise of a judge’s discretion to grant or refuse bail. If this broad approach is kept in mind, then Arvind Kejriwal ought to have been granted bail earlier till his case was ready for trial, and not just as an interim measure. The charges against the Delhi CM have not yet been crystallised even though the ‘investigation’ has been in progress for two years. He’s been arrested ostensibly on the ‘confession’ of a would-be approver of seriously dubious integrity who had given contradictory versions of his ‘confession’ previously.

Then again, Arvind Kejriwal is not a flight risk. He cannot possibly tamper with evidence already supposedly gathered by the Enforcement Directorate, or influence witnesses especially if his liberty is vigilantly monitored. All these circumstances are compelling for a judge to set Arvind Kejriwal free to function and discharge his duties as the Chief Minister of Delhi. But the Supreme Court didn’t get into these mundane nitty-gritty details and gave Arvind Kejriwal his rightful liberty on the solid foundation of democracy, the concomitant of which is ensuring a fair and free election.

Arvind Kejriwal heads a national party, the Aam Aadmi Party. It is constitutionally recognised as the ruling party in Delhi and Punjab. His absence will give the BJP an undisputed, unfair advantage and will deny the voters an informed choice of an alternative desirable candidate to vote for without an important spokesperson canvassing against the ruling party. Surely, that’s at the heart of the matter. If democracy does survive in this sub-continent, posterity will certainly hail these recently pronounced three judgments as the primary reason for its preservation.

Giving the judiciary its voice

We have a robust judiciary, at least at the higher levels, and an inspirational Supreme Court when the need demands. Has it always been that way? I don’t think so. We’ve been let down on occasions in the past but as long as every judge must attain retirement age and demit office, the bad eggs must go. The institution has the inherent resilience and self-belief to bounce back and roar “We are a democracy”. Simply stated, our ancient culture and civilisation are of the fragrance of democracy and uncompromisingly espouse freedom of thought and expression. 

Surely a judiciary that is a product of the same wholesome cultural influence cannot but be guided by these cherished values in writing their decisions. If ever our judges are momentarily afflicted by laryngitis when a vocal assertion of democracy is called for, have no fear, the Indian citizen has the best throat lozenges to give the judiciary back its voice.

(The writer is a senior advocate who practices in the Supreme Court of India and heads the Mumbai law firm Oasis Counsel and Advisory. By  arrangement with The Billion Press)