P Chidambaram: Beyond jail and bail

Freedom is indivisible”, Congress leader and former Union minister P Chidambaram repeated Nelson Mandela’s famous words after being released from Tihar Jail. He said only good things about the court; though he was actually not treated well by the Delhi High Court or even by the Supreme Court, earlier.

The belated grant of relief does not mitigate the gravity of the institutional failure that occurred in the episode. It is no longer a matter of the egregious folly in the Delhi HC order declining bail to the former minister. It is also about the lack of intervention from the SC at the earliest occasion when it could have acted lawfully and constitutionally so as to protect the liberty of the aged citizen.

In that case, the unnecessary incarceration for more than 100 days even after the custodial interrogation could have been avoided or at least reduced.

The judgment authored by SC judge Justice A S Bopanna is however significant in as much as it lays down the correct principle of law. It reminded the courts about the conventional tripod test to be applied while considering the bail application. In the bail petition, the courts only need to see: i) whether the accused may abscond, ii) may attempt to tamper evidence and, iii) may try to influence the witnesses.

The First Information Report in Chidambaram’s case is belated by a decade and it rests on the fragile testimony of an approver, Indrani Mukerjea, whose credentials are yet to be tested in the trial. Even the charges are yet to be framed.

The high drama in which the CBI officers scaled the walls of the Parliamentarian’s residence was only the beginning of the higher dramas that followed. The CBI and the Enforcement Directorate (ED) acted synergically so as to prolong the detention.

In advanced democracies, the Parliamentarians do possess immunity from arrest except in certain rare and justifiable situations. This is essentially protection from political vendetta of the persons in power. Article 46 of the German Constitution is an example.

Woodrow Wilson famously said, “the history of liberty is a history of the limitations of governmental power, not the increase of it”. But Indian history shows that seldom the judiciary could correct the illiberal atrocities of an aggrandising state. Legal scholar Vincent Blasi described “pathological periods” in history where a mighty state would punish the dissidents even “for what they say or believe”. A war or an Emergency can create such a danger zone.

One can have a different opinion about Chidambaram as a political leader or ruler. The way in which he used his power needs critical exposure. Perceptions may vary from person to person. But he always remained as an erudite member of the bar whose advocacy is built upon intellectual strength and will power.

This writer felt a deep sense of respect for him after keenly listening to his submissions in the money bill-related part in the famous Aadhaar case in 2018. He was clear, calm, focussed and excellently streamlined in his arguments before the Constitution Bench of the top court led by Justice Dipak Misra. His son was under detention when he addressed the court.

The Supreme Court, in the present order granting bail, has correctly found fault with the practice of relying on documents in a sealed cover to which others do not have access. The proceedings in a court cannot be reduced to a private affair.

Gag order

However, the top court ought not to have gagged the Parliamentarian from making any comment about the case. He had the constitutional right to say that the action of the present regime is politically motivated.

In the 1970s, American author and singer Bob Dylan’s famous song “Hurricane”, accused the police and even the court, as according to him, boxer Rubin Carter was convicted based on racial prejudice and not legal evidence. It was, at that time, treated as an improper and unlawful gesture from the great singer.

Ultimately, after prolonged detention of Carter, in the retrial, the courts found that the conviction itself was wrong and not supported by any legal evidence. The gag order now issued against Chidambaram, which even otherwise is unprecedented and unconstitutional, cannot stand the test of legitimacy since a future exoneration is quite possible.

It is ironic that in the present judgement the court correctly relied on the principles in Gurbaksh Singh Sibbia (1980), which, based on earlier case laws which said that “an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody”. Sibbia further said, “As a presumably innocent person, (one) is ... entitled to freedom and every opportunity to look after his own case. (He) must have his freedom to enable him to establish his innocence”.

As a matter of law, the same principle applies to an application for anticipatory bail. In Siddharam Satlingappa (2010), the court relied on the same judgement in Sibbia to say that a special case need not be established for anticipatory bail and 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 circumstance of that case”. But the Supreme Court could not apply the principle at the pre-arrest stage in Chidambaram’s case.

The practice of the courts including the HCs of writing lengthy orders in sensational cases also needs to be criticised. It was almost a uniform practice about a decade ago to grant or deny bail with a short order, based on the conventional tests. Brevity is also a judicial virtue that helps to avoid an unwarranted analysis of the merit of the case at the pre-trial stage.

Let us, however, not reduce the episode to a mere legal question concerning jail or bail. It is essentially a political issue with an immense impact on the country’s democracy.

(The writer is a lawyer at the Supreme Court)