Questions the Timing of His Arrest Close to Lok Sabha Election

Newsreel Asia Insight #208
May 1, 2024

The Supreme Court has directed the Enforcement Directorate (ED) to clarify several legal ambiguities in the arrest of Arvind Kejriwal, the Chief Minister of Delhi, as part of an ongoing investigation into alleged irregularities in the Delhi Excise Policy for 2021-22. The case, which has significant political implications, especially with its timing ahead of the general elections, sees Kejriwal currently detained at Delhi’s Tihar Jail.

Justices Sanjiv Khanna and Dipankar Datta posed the questions to Additional Solicitor General S.V. Raju, who represents the ED. These questions must be addressed by May 3, the next scheduled hearing, as reported by Bar and Bench.

The queries challenge the fundamental legal procedures followed in Kejriwal’s arrest and subsequent remand. They include concerns about the initiation of criminal proceedings without adjudicatory proceedings, the application of onus provisions under the Prevention of Money Laundering Act (PMLA), and the timing of Kejriwal’s arrest.

The first question raised by the bench pertained to the initiation of criminal proceedings absent any adjudicatory steps, such as attachment proceedings, specifically asking for clarification on Kejriwal’s involvement. The bench highlighted the absence of any proceedings of attachment to date, probing the link, if any, to Kejriwal.

The query addresses whether it’s lawful to start criminal proceedings – like an arrest – without first going through an adjudicatory process, which typically involves a formal examination of evidence by a “judicial” officer. This is important because it checks whether the legal process was properly followed. The Court also asked for evidence showing Kejriwal’s involvement, specifically questioning if any financial assets were legally seized directly link him to the alleged crime.

The second question is related to comparisons with the case against Manish Sisodia, former Deputy Chief Minister, who faced similar accusations but had findings both supporting and opposing his involvement. The court sought clarity on how Kejriwal’s situation aligns with or differs from Sisodia’s case. This asks the ED to clarify why Kejriwal should be treated similarly or differently from Sisodia based on the evidence.

The third question is about the differing thresholds of burden of proof required under sections 19 and 45 of the PMLA. Section 19 places the onus primarily on the prosecution, while Section 45 shifts this burden to the accused, prompting the court to look into the appropriate balance and application of these standards. Here, the Court is questioning how these standards should be applied and whether they should be uniform, essentially asking for fairness in how heavy the burden of proof should be on either side.

The fourth question is about the notable delays between the initiation of proceedings against Kejriwal and his eventual arrest, probing the rationale and legality behind the sequence of events leading to his detention. This is significant because it raises concerns about using legal actions to influence political outcomes, potentially undermining the rule of law and democratic processes.

The fifth question is about the timing of Kejriwal’s arrest, with the Court noting its proximity to the upcoming general elections, suggesting a potential political dimension to the timing and nature of the enforcement actions. Here, the justices are concerned about the timing between when the legal actions against Kejriwal began and when he was actually arrested. This could show potential issues of procedural delay or rush, which might affect the fairness of the legal process.

The ongoing legal proceedings stem from a complaint lodged by Delhi’s Lieutenant Governor V.K. Saxena on July 20, 2022, leading to a Central Bureau of Investigation (CBI) case registered on Aug. 17, 2022. Allegations suggest a conspiracy by leaders of the Aam Aadmi Party (AAP), including Kejriwal and Sisodia, exploiting policy loopholes purportedly to favour certain licensees after the tendering process.

The Delhi High Court, on April 9, upheld the legality of Kejriwal’s arrest. In contrast, his counsel, Senior Advocate Abhishek Manu Singhvi, argued that there was no tangible evidence of Kejriwal’s direct involvement in any crime, pointing to the absence of any trace of the proceeds of crime.