Aakar Patel | The grounds on which Kejriwal got bail apply to many others

Delhi CM Arvind Kejriwal has been released for a few days to campaign, after which he has to return to Tihar Jail. He has not been convicted, of course, and is in jail merely because the BJP opposes his bail. The Supreme Court judges observed that Mr Kejriwal was “the chief minister of Delhi and a leader of one of the national parties. No doubt, serious accusations have been made, but he has not been convicted. He does not have any criminal antecedents. He is not a threat to society”.

The apex court also noted that the case was registered in 2022 but Mr Kejriwal was arrested only on March 21 this year, just weeks before the voting began.

Voting began on April 19. Mr Kejriwal missed more than a month of the initial campaign and then was kept in jail while three phases of the election were over. It was his wife who was campaigning on his behalf around the country. Will such an election be considered free and fair when the results are out on June 4? Locking up your opponents while you are free to campaign is the sort of “election” that happens in nations that are called autocracies.

The former chief minister of Jharkhand, the former deputy chief minister of Delhi and Kalvakuntla Kavitha of the Bharat Rashtra Samithi, which ran the previous government in Telangana, are all in jail and none of them has been convicted.

The BJP’s argument in court is that politicians should not be treated differently from other accused and should not be given bail to campaign. What it is not saying is that democracy is unimportant and elections are incidental to their desire to keep their opponents locked up. 

Again, we must note that not a single one of these politicians in jail is a convict. They are merely accused, and accused by the BJP, that they have done something wrong.

What the court has noted in the case of Mr Kejriwal also applies to the rest. They have no antecedents, they are not a threat to society, and they are all leaders of various political parties.

Mr Kejriwal got a rousing reception on his release and the BJP was not pleased. One of its national executive members tweeted that “by picking a side right in the middle of the elections, the lordships have made themselves a part of the campaign. When the billion ballots speak, they may not like it”.

The problem, of course, is that the courts are being forced into this. The real question is whether one should accept the word of the BJP that it is not attacking democracy when it engages in such actions. India is quite divided on this, with the Prime Minister’s supporters egging him on over such things.

Let us assume that the Opposition and those who support it are totally biased and can be ignored. What does the outside world, which presumably has less of a stake or no stake at all, feel about the route India has taken?

We need only go back to what has been said several times, over several years, including in this column. The outside world says that India is not only sliding into authoritarianism, it is no longer even a democracy.

Freedom House has said “the BJP has increasingly used government institutions to target political opponents”. This is a fact. Freedom House ranks India as being “partly free”. This is also a fact, and indeed it reflects the position of Mr Kejriwal as much as it does of our country.

The Economist Intelligence Unit’s Democracy Index monitors civil liberties, pluralism, political culture and participation and electoral process. In 2014, India was ranked 27th. In 2020, India was classified as a “flawed democracy”. Last year, the ranking was 41 and this was the “result of democratic backsliding under the leadership of Narendra Modi”. They made other observations about the attacks on the minorities by the government, which we need not go into here.

The global alliance of civil society organisations CIVICUS in 2017 rated India’s civil space as “obstructed”, but it has since fallen to “repressed”. Is repressed the sort of word that is used for democracies? No. 

In March 2022, CIVICUS said: “India has been added to a watchlist of countries that have seen a rapid decline in civic freedoms” and that Prime Minister Narendra Modi “continues to resort to drastic measures to silence critics”. Jailing them during elections is one especially good measure to silence your critics, particularly articulate ones like Mr Kejriwal and Sanjay Singh, who was also jailed by the ED without being convicted but was recently given bail.

Lastly, the University of Gothenburg’s V-Dem report says that India has suffered “one of the most dramatic shifts among all countries in the world over the past 10 years”. It said that under Mr Modi India lost its status as a democracy and was classified as an “electoral autocracy”, joining nations like Hungary and Turkey. On freedom of expression, media and civil society, India was “as autocratic as is Pakistan, and worse than both Bangladesh and Nepal”.

When these reports began to come after 2014, the government and its supporters scoffed and said they were the result of bias. Today, in 2024, the BJP jails its opponents during an election and still believes, or at least wants us to believe, that it is only following the rules of democracy.