Editorial: Politics of punitive bail

NEW DELHI: Commentary following the bail granted to Delhi Chief Minister Arvind Kejriwal last week and his subsequent decision to resign tended to concentrate on political issues rather than dwell on the politicisation of the judicial process. While political circles, treating this as nothing more than a game of chess, engage in a debate over the electoral implications of Kejriwal's resignation, the pressing concern for the public at large should be that of the weaponisation of bail practices.

The selective and discriminatory application of bail laws has become a tool in the hands of the BJP-led Union government to rein in its political adversaries and dissidents. The basic questions of justice and fairness that this misuse raises must worry the judiciary too, not least because its own relevance as an independent institution will diminish in the long run as a result of it.

After months of incarceration interrupted only by a brief release to let him canvass in the Lok Sabha election, the Supreme Court granted bail to Kejriwal in the Delhi excise policy case on September 13. But while doing so, it imposed several restrictions on him, including curbs on visiting his office and signing any official documents without prior approval from the Lieutenant Governor. These conditions not only limit Kejriwal’s functionality as Chief Minister but also undermine the autonomy of the Delhi government. The long incarceration and hobbled release of Kejriwal are tantamount to circumscribing the operational ambit of a duly elected Chief Minister, and he is justified in resigning rather than serving out his term in a lame-duck condition.

As one of the two Supreme Court judges, Justice Ujjal Bhuyan, indicated, the CBI's actions in the Delhi excise scam case can only be seen as politically motivated given the lack of any serious progress in the investigation and the differential application of the law to different persons in the same case. Coincidentally, the week Kejriwal was granted fettered freedom also saw Umar Khalid entering the fifth year of his detention without trial. The former student leader has faced repeated denials of bail in the Unlawful Activities (Prevention) Act (UAPA) case against him, a law whose stringent provisions allow investigating agencies to detain dissidents for long periods without bringing the charges to trial.

The denial of bail to Khalid too raises serious concerns about the fairness of the judicial process and the potential for misuse of power by law enforcement agencies. While the Supreme Court has clearly articulated the principle that "bail is the rule, jail is the exception", its selective and arbitrary application allows it to be used as a form of state control over dissenting narratives.

The country’s law enforcement landscape has shifted dramatically, with emphasis now placed on bail denial and arbitrary detention rather than effective crime prevention and solution. Police and other investigating agencies have reduced their own process to punitive detention and are content to rest on those oars. This detracts from the fundamental purpose of law enforcement, which is to ensure public safety and uphold justice. Instead, we are witness to a trend where the legal system is being weaponised against political opponents, creating a chilling effect on free speech and political engagement. The arbitrary and prolonged detention of individuals like Khalid, juxtaposed with the conditions imposed on Kejriwal, will ultimately undermine the public’s trust in the judicial system.