Bail in A Broken System: Arvind Kejriwal Has Got Bail, But His Arrest Indicates a Broken Criminal Justice System


05:42 AM

1 min read

Why in News?

  • The recent grant of interim bail to Delhi Chief Minister has ignited a crucial debate regarding the rights of political leaders to campaign during national elections.
  • While Kejriwal's bail marks a temporary relief, it underscores the broader challenges within the criminal justice system that require urgent attention.
  • Amid these debates it is crucial to examine the intricacies of this case, analysing the intersection of democratic principles, legal frameworks, and the functioning of the criminal justice system.

The Right to Political Expression and Campaigning

  • At the heart of this issue lies the fundamental right to political association and expression, which encompasses the formation and promotion of political parties.
  • For a party's convenor, this right is inseparable from the duty to lead the party to electoral success, making campaigning a crucial aspect of their role.
  • This right also extends to dissent, particularly for opposition leaders, reflecting the essence of democratic processes enshrined in the Constitution.

Intricacies of the Legal Framework and Bail in Delhi CM’s Case

  • Balancing Individual Liberties and State Interests
    • The grant of interim bail to Arvind Kejriwal brings into focus the intricate balance between individual liberties and the state's interest in maintaining law and order.
    • In theory, the legal system upholds the principle of "innocent until proven guilty," placing the burden of proof squarely on the prosecution.
    • However, this principle often faces challenges, particularly in cases categorised as "heinous" or politically sensitive.
  • Complexities of Legislation
    • One such challenge arises from the interpretation and application of laws that grant wide discretionary powers to law enforcement agencies.
    • Complex legislation, such as the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA), allows for the invocation of stringent measures even before conclusive evidence is presented.
    • The vague definition of offences under these laws gives significant leeway to investigators, prosecutors, and politicians, leading to arbitrary arrests and denial of bail.
  • Complexities of Bail Conditions and Subjectivity
    • Moreover, the conditions imposed for the grant of bail pending trial further complicate matters.
    • Courts are often required to be convinced that prima facie no offense has been committed, a subjective standard that can vary depending on the interpretation of the facts.
    • This requirement, coupled with the lack of clear thresholds for satisfaction and reasonableness, leaves room for discretion and potential abuse.
  • Political Considerations and Legal Proceedings
    • In cases involving politically influential individuals like Kejriwal, the legal proceedings often become entangled with broader political considerations.
    • The presumption of innocence can be overshadowed by the presumption of guilt, particularly when charges cannot be substantiated with concrete evidence.
    • This leads to the substitution of charges with vague allegations of "larger conspiracy," prolonging investigations and denying individuals their right to liberty.

Broader Systematic Failures and Challenges in Indian Criminal Justice System

  • Arbitrary Prosecution and Lack of Evidence-based Investigations
    • The system often witnesses arbitrary prosecution, where individuals are targeted based on political affiliations or personal vendettas rather than concrete evidence of wrongdoing.
    • This politicisation of the legal process undermines the integrity of investigations and erodes public trust in law enforcement agencies.
  • Vague Definitions of Offences and Abuse of Legal Processes
    • The invocation of laws such as the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA) highlights the problem of vague definitions of offenses and the abuse of legal processes.
    • These laws provide authorities with sweeping powers to arrest and detain individuals without clear evidence, leading to violations of fundamental rights and liberties.
  • Absence of Clear Thresholds for Satisfaction and Reasonableness
    • The lack of clear thresholds for satisfaction and reasonableness in granting bail exacerbates the problem of arbitrary detention.
    • Judges are often left to rely on subjective interpretations of evidence and legal standards, leading to inconsistent rulings and unequal treatment before the law.
  • Targeted Prosecutions and Denial of Liberty
    • Individuals, especially those with political affiliations, often face targeted prosecutions aimed at silencing dissent or curbing political opposition.
    • The denial of bail becomes a tool for stifling voices of dissent and perpetuating a culture of fear and intimidation.
  • Substitution of Charges and Prolonged Investigations
    • In cases where charges cannot be substantiated with concrete evidence, authorities often resort to the substitution of charges or allegations of "larger conspiracy."
    • This tactic prolongs investigations, denies individuals their right to liberty, and undermines the presumption of innocence.
  • Political Influence in Legal Proceedings
    • Political considerations often permeate legal proceedings, influencing decisions related to investigations, prosecutions, and bail.
    • This politicisation of the legal process compromises the independence and impartiality of the judiciary, eroding public confidence in the rule of law.
  • Challenges to Equality Before the Law
    • The comparison of Kejriwal's role to that of an agricultural worker or businessperson by Solicitor General Tushar Mehta reflects a concerning trend in the understanding of equality before the law.
    • Such comparisons downplay the significance of political leadership and fail to acknowledge the unique challenges faced by public figures in exercising their rights within a democratic framework.

The Role of the Supreme Court and Urgent Need for Reforms

  • The burden on the Supreme Court to address these systemic failures and legal challenges is
  • The Court's intervention is crucial in safeguarding individual rights, upholding democratic principles, and restoring public trust in the criminal justice system.
  • Urgent reforms are needed to ensure fairness, accountability, and transparency in legal proceedings and to protect the rights of all individuals before the law.


  • The responsibility to address challenges associated with India’s criminal justice system lies not only with the judiciary but also with policymakers and society at large.
  • Ensuring a fair and equitable system is essential to uphold democratic principles and protect the rights of all individuals, regardless of their political affiliations.

As the burden on the Supreme Court remains high, the call for systemic reforms and accountability echoes louder than ever. 

Q) How does the Indian criminal justice system address the issue of bail?

In the Indian criminal justice system, bail is a mechanism to ensure the accused's release from custody while awaiting trial or investigation. The primary principle is that bail should be granted to prevent the undue hardship of detention, except in cases where it is likely to impede justice. The Code of Criminal Procedure, 1973, categorises offences into bailable and non-bailable. For bailable offences, the accused has a right to bail, whereas, for non-bailable offences, the granting of bail is at the discretion of the court. Factors like the nature of the offence, the possibility of the accused fleeing, and the potential threat to society are considered before granting bail.

Q) What are the roles of the police and the judiciary in the Indian criminal justice system?

In the Indian criminal justice system, the police and judiciary have distinct yet interrelated roles. The police are responsible for the prevention and investigation of crimes. They register First Information Reports (FIRs), collect evidence, and arrest suspects. Once the investigation is complete, the police file a charge sheet in court. The judiciary, on the other hand, is responsible for adjudicating the cases brought before it. It ensures a fair trial, interprets the law, and delivers judgments. The judiciary also oversees the conduct of the police to ensure that investigations are conducted lawfully and without infringing on individuals' rights

Source:The Indian Express