AA Edit | Are govts twisting laws to jail critics before election?

“How many persons will you jail before the elections if you start putting behind bars everyone who makes allegations…” was a question a division bench of the Supreme Court asked the counsel for Tamil Nadu, while ordering restoration of bail to a YouTuber who was arrested and out on bail for some incendiary remarks against chief minister M.K. Stalin but the anguish in the expression is shared by all those who believe in the ethos of a liberal democratic republic that India is.

One of the key fundamentals of administration of criminal justice in a democracy is the presumption that one is innocent until proven guilty through the due process of the law. This dictum finds its root in Article 21 of the Constitution which states that no person shall be deprived of his life or personal liberty except according to procedure established by law.

What worries the court and most democratically-minded people is that the law is misused by those in power to torture their critics. Given the delay in our courts, it would take years for a person to go through the trial and get a verdict. The cumulative result is that the process then becomes the punishment, and those who have access to the levers of power can move at their will against their opponents.

Prime Minister Narendra Modi’s “guarantee” that all corrupt leaders will be put behind bars after June 4 when the results of the Lok Sabha elections are out is another statement that forecasts not the future pursuit against corruption but is tactics of intimidation, and Opposition leaders including Congress president Mallikarjun Kharge, NCP president Sharad Pawar and TMC chief and West Bengal chief minister Mamata Banerjee have already torn it apart.

Mr Modi has been in power for the last 10 years but the nation has witnessed no concerted action against corruption except selective victimisation of political opponents. The NDA government came to power on the strength of a powerful anti-corruption movement but instead of strengthening the mechanism for fighting the menace, the government weakened it instead by restoring the rule that requires agencies to ask for the government’s sanction to investigate officials.

The government has put to use the Enforcement Directorate and the Prevention of Money Laundering Act, 2002, in alleged cases of corruption precisely because the law condones dumping people in jail with very little or no evidence of wrongdoing. The Supreme Court had at least in two instances — during hearings of the bail petitions of Aam Aadmi Party leaders Manish Sisodia and Sanjay Singh — pointedly told the agency that there was nothing on record incriminating the two leaders in the Delhi excise scam case despite a so-called investigation that lasted almost two years.

People’s liberty and the fight against corruption need not be two mutually exclusive domains; the law allows the government to pursue corruption cases and provides for keeping the accused in jail so that the investigation and trial are conducted as per the requirements of the law. But to project this provision as threat against Opposition leaders is undemocratic, even unconstitutional. The government, whether at the Centre or in the states, should stop putting critics and opponents behind bars by abusing the provisions of the law.