Watch | 'Misuse of CBI, ED to Persecute Oppposition Violates Constitution's Basic Structure'

Congress MP Abhishek Singhvi tells Karan Thapar that opposition parties should collectively file a case in the Supreme Court arguing that the misuse of central agencies to "harass opposition politicians" violates Article 14 of the constitution.

In an interview where he expands upon and explains in greater detail an idea he first proposed at the recent Congress Plenary Session in Raipur, Congress MP and lawyer Abhishek Manu Singhvi says that the misuse of the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) to persecute and harass opposition politicians violates Article 14 and its consequence is a breach of the basic structure of the Indian constitution. He says that the best response would be for opposition parties to collectively file a case in the Supreme Court. Singhvi also believes that the Supreme Court will accept the case – even though some people might argue it verges on the political and could be deemed to be a transgression by the Supreme Court into the realm of the executive – because as an Article 14 case, it concerns a fundamental right and also because the issue raised is the adverse impact on the level-playing field which is essential for democracy which is, of course, a part of the basic structure of the constitution.

In a 27-minute with Karan Thapar for The Wire, Singhvi clearly and carefully explained his argument. He argues that Article 14 is “the most dynamic of all articles in our constitution”. He says through case law over the last 75 years, its ambit has been expanded to include a non-arbitrariness facet and also a due-process facet. Now, as a result, Article 14 can be applied when you ask the question, “How fair is the law?” So, his first point is the manner in which the ambit of Article 14 has been expanded in the last 75 years.


His second point is to do with the impact and consequence of the actions taken by the CBI and ED against opposition politicians. He says their skewed and discriminatory application of laws has created a non-level playing field for democracy. The facts, he says, prove this – 95% of all cases filed against politicians are filed against opposition politicians. Now, since free and fair elections and, more importantly, democracy is undoubtedly part of the basic structure of our constitution, if action by the CBI and ED against opposition politicians creates a non-level playing field for democracy then, clearly, this action is adversely affecting the basic structure of the constitution.

So the action taken by the CBI and ED against opposition politicians can be questioned in terms of non-arbitrariness and due process (how fairly is the law being applied) and, therefore, Article 14 applies. Secondly, because the action by the CBI and ED creates a non-level playing field it damages democracy and, therefore, adversely affects the basic structure of our constitution.

The Congress MP also explains why it would be important for opposition parties to collectively raise this matter in the Supreme Court rather than individually. He explains why he thinks the opposition must today commit itself to a decision that whenever it forms a government at the Centre it will set up an inquiry panel to investigate misuse of government agencies like CBI and ED and ensure action is taken against officers who have allowed their powers to be misused.

Finally, Singhvi talks about the need for “a legal coalition” of opposition parties to defend their free speech in parliament. Here, he is not talking about a defence against the behaviour or decisions of the Lok Sabha speaker and Rajya Sabha chairman but the possibility of taking this matter to the Supreme Court. He believes arbitrary and unfair exercise of powers by the speaker or the chairman is judicially reviewable.

Last of all, Singhvi answers two questions: Does his party support and endorse his proposals? Has he got any indication from the opposition – parties or individuals – whether they will go along with his proposals?