Brij Bhushan vs Manish Sisodia, Nawab Malik: Is Liberty 'a Gift for the Few'?

"Parallel lives... It was a matter of parallel lives, one person having lamb for supper, the other cucumbers. With fate deciding, at random, which was which," wrote Hala Alyan, in Salt Houses, a historical-fiction novel which traces the story of a Palestinian family across six major incidents of global history.

Closer home, and closer now, it isn't the question of lamb and cucumbers, but of liberty and the lack of it. And perhaps, it is our law enforcement agencies, and not fate, that is deciding – (seemingly) at random – which is which.

Thus, on the one hand, we have the Wrestling Federation of India (WFI) president, who continues to remain out of jail even after one of the two FIRs against him – which, by the way, were filed only after the pleas reached the top court – booked him under the Protection of Children from Sexual Offences (POCSO) Act.

On the other, we have legislators awaiting the slightest flicker of liberty, even after months of incarceration.

Note: We are categorically not saying that Brij Bhushan Sharan Singh, BJP MP and WFI president, should be arrested. That is entirely the discretion of the police and contingent on his cooperation with the probe.

However, all we are asking is:

If law – and the enforcers of the law – can make make such room for Singh's liberty, why was Congress party's P Chidambaram in custody for over a 100 days in 2019? Why has AAP's Manish Sisodia been in jail since February this year? Why is NCP's Nawab Malik incarcerated since February last year, despite his crumbling health?

THE CASE AGAINST BRIJ BHUSHAN –  WHAT WE KNOW

As per media reports, Singh has been booked in two FIRs.

Deputy Commissioner of Police, New Delhi, Pranav Tayal, was quoted by IANS as having said: "The first one pertains to allegations levelled by a minor victim which is registered under the POCSO Act along with relevant IPC sections concerning outraging of modesty."

"The second FIR is registered for carrying out comprehensive investigations into the complaints tendered by other, adult complainants under relevant sections pertaining to outraging of modesty etc."

According to News18, Bhushan has been booked under:

354 IPC: Assault or criminal force to woman with intent to outrage her modesty

354(A) IPC: Sexual harassment and punishment for sexual harassment

354(D) IPC: Stalking

Section 10 POCSO: Punishment for aggravated sexual assault (of a minor)

The Quint has not been able to independently access either of the FIRs against Singh, and it is difficult to confirm at this point whether this is an exhaustive list of alleged offences or not.

However, none of these offences make Singh liable for more than seven years imprisonment. The maximum punishment, that he can accrue if convicted, will be under Section 10 of POCSO – five to seven years.

In Satendra Kumar Antil vs Union of India, the apex court reiterated the Arnesh Kumar guidelines and said:

"...(in case of) a cognizable offence, punishable with imprisonment for a term which may be less than seven years, or which may extend to the said period, with or without fine, an arrest could only follow when he (an officer) is satisfied that there is a reason to believe or suspect that the said person has committed an offence, and there is a necessity for an arrest."

And what does the necessity for an arrest entail? As per Antil:

– Bid to prevent the committing of any further offence
– Proper investigation
– Bid to prevent the accused from either disappearing or tampering with the evidence

Additionally, in a general sense, Namit Saxena, Advocate on Record, Supreme Court, told The Quint:

This is true for offences punishable by more than seven years of imprisonment too.

As pointed out by Ishan Khanna, who specialises in white-collar criminal litigation and advisory: "Even in case of murder offence, if the police feel custodial interrogation is not necessary, they can choose not to arrest the accused."

Advocate Ahmad Ibrahim further told The Quint:

So, if a POCSO accused need not go to jail; a murder accused, as per Khanna's example, can also lawfully evade incarceration; does a former deputy CM need to spend such a long time in custody?

The answer to this is a little complicated.

WHY MANISH SISODIA'S CASE IS DIFFERENT

While arrest per se is not mandatory under any law and is usually the law enforcement agency's prerogative, the law does stipulate conditions for bail.

Manish Sisodia has been arrested in connection with a case filed against him by the Central Bureau of Investigation (CBI) as well as one by the Enforcement Directorate (ED). While the CBI has booked him under various sections of the Indian Penal Code and the Prevention of Corruption Act, the ED case is under the Prevention of Money Laundering Act (PMLA).

Noting that "arrest carries a particular set of repercussions" and that "in cases involving accused who are not flight risks, arrest shouldn't be made in a routine manner," AOR Saxena said:

"For special statute books such as NDPS Act, PMLA etc, the law is different."

And PMLA is notorious for its 'twin-conditions', which make grant of bail extremely hard to come by.

Legal experts have expressed concern over the fact that under the PMLA, an accused person must satisfy the court that there are no grounds to suggest his guilt at the bail stage, resulting potentially in a “mini-trial”.

BUT WAIT...

Even as bail may be difficult, one must remember that arresting an accused isn't a mandatory precondition – either under the IPC, or under the PMLA.

As pointed out by Khanna:

"The police, ED, CBI are well within their right to arrest people, in compliance with the law and they do not even need a warrant where the law does not mandate it. Having said that, there have been practical instances where, without any reason justifying custodial interrogation, the police has done the same."

CHIDAMBARAM'S INCARCERATION AND WHAT THE TOP COURT HAD SUBSEQUENTLY HELD

One such practical instance that comes to mind is the extended undertrial incarceration of former home minister P Chidambaram.

Chidambaram, at 74 years of age, had to spend 105 days in custody, also in connection with an alleged money laundering case, before any relief came for him.

Granting bail to Chidambaram, the top court noted that economic offences did come in the category of grave offences, but even then, the grant of bail is the rule and refusal is the exception.

Additionally the apex court expressed its disapproval of the observations made by the Delhi High Court on the merits of the allegations.

The court also noted that Chidambaram had satisfied the triple test for grant of bail, i.e. he was not a flight risk, not at risk of tampering evidence and not likely to influence witnesses.

In State of Maharashtra Vs. Nainmal (1969), the apex court held that there must be "absolute certainty" that the accused would flee the jurisdiction, or reasonable apprehension that he would tamper with the evidence, "before a court would detain an accused indefinitely during the period of the investigation."

In Chidambaram's case, the apex court had held that being an MP and a senior member of the bar, he had "strong roots in the society" and was unlikely to abscond. Wouldn't the same logic apply to Sisodia and Malik too, given how they are prominent political figures who have, in the recent past, held important portfolios as well?

WHEN JUDICIAL CUSTODY SHOULD BE AVOIDED...

But Khanna pointed out: "Especially in money laundering or corruption cases, the courts have unfortunately been known to usually approve ED or CBI custody in a blanket manner."

He also added that:

"Consider the matter of bail at the remand stage," Khanna said.

And what is the question that should be on the judge's mind while doing so?

"The CBI/ED/police questioning is over, now does the accused need to rot in jail?" he answered.

CUCUMBERS AND LAMB

Manish Sisodia is presently in judicial custody. The ED had previously sought extension of his judicial remand and was granted the same by the court. The ex-deputy CM is slated to at least remain in judicial custody till 8 May, if not longer.

As per Livelaw, on 14 February, the Bombay High Court had asked Nawab Malik’s lawyers to justify if he was “sick” as defined under the PMLA, in order for his bail plea to be heard on priority and the 'twin conditions' to be relaxed. His lawyers had said, in response, that one of his kidneys was failing.

On 25 April, Senior Advocate Kapil Sibal informed the Supreme Court: "One of his kidneys has failed and another is giving up."

As of 3 May (a TOI report), Malik was hospitalised in Kurla. But he is yet to be granted bail.

In other news, the protesters, huddled at Delhi's Jantar Mantar, continue to demand Brij Bhushan Singh's arrest. On Thursday, the apex court, noted that the FIRs had been registered and closed the petitions alleging sexual assault. This is despite the petitioners' counsel requesting the apex court to monitor the probe, given how long it took for the Delhi Police to register the FIRs.

It is, of course, true that POCSO and PMLA are two separate legislations, guided by their own distinct objectives. It is hard to draw parallels.

However, can one truthfully argue that the former is less grave than the latter? And as held by the apex court, grave or not, bail is the rule and jail the exception.

Or as pointed out by the Justice DY Chandrachud (present CJI), in his order granting bail to Television personality Arnab Goswami:

"Liberty is not a gift for the few."

So why cucumbers and lamb?

Chidambaram, Sisodia and Malik are just a few examples, among many others, of those who've had to face a glaring deprivation of liberty; even as some of their more fortunate contemporaries appear to have received this right in seemingly unyielding abundance. But Article 14 guarantees equality before law to all citizens of India.

(With inputs from IANS, News18, Livelaw and TOI.)