On 13 September, the Supreme Court’s bench comprising Justice Surya Kant and Justice Ujjwal Bhuyan granted bail to Delhi Chief Minister Arvind Kejriwal in the CBI (Central Bureau Of Investigation) case against him.
Kejriwal was arrested on 26 June by the CBI moments before his hearing commenced in the Supreme Court for bail in the ED's (Enforcement Directorate) purported liquor policy scam case. The arrests by both the ED and the CBI were in connection to the case, in which Manish Sisodia, K Kavita, and others have been released on bail recently.
Even though Kejriwal's release was unanimously granted by both courts, Justice Ujjal Bhuyan disagreed with Justice Kant on the CBI's arrest, stating that it was solely done to frustrate bail that had been given in the ED's case.
In his ruling, Justice Kant stated that Kejriwal would be freed provided he provided a bail bond of Rs 10 lakh and two sureties in the same amount. In addition, he mandated that the CM refrain from publicly discussing the merits of the CBI case. Kejriwal has filed two applications in the matter, one contesting the CBI's decision to sustain his arrest and the other contesting the refusal of bail.
Justice Bhuyan, however, raised concerns about the timing of the CBI's involvement, stating that the agency became active after Kejriwal was granted regular bail in the ED case. The CBI did not feel the need to arrest him for more than 22 months, as Justice Bhuyan stated:
CBI did not feel the need to arrest him though he was interrogated in March 2023 and it was only after his ED arrest was stayed, CBI became active and sought custody of Kejriwal and thus no need of arrest for over 22 months. Such action by CBI raises serious question on the timing of the arrest and such an arrest by CBI was only to frustrate the bail granted in ED case.
Justice Bhuyan also pointed out that the basis for Kejriwal's arrest was not sufficiently justified and that citing vague responses does not justify arrest or continued custody. It would be, he argued, a “travesty of justice to keep Kejriwal incarcerated when he is on bail in ED case.”
The CBI, being the primary investigative agency, must not give any indication that the investigation was improperly conducted. Indeed, it is imperative to make every attempt to dispel any impression that the inquiry is not conducted impartially and that the arrest was made in an arbitrary and discriminatory way. Perception matters.
Additionally, Justice Bhuyan, while giving the order questioned the conditions made out for the chief minister’s bail in the ED case, but he did not get into the intricacies of the conditions. He wrote:
I have serious reservations on the conditions which bar Kejriwal from entering Secretariat or signing files, but I am not making comment due to judicial restraint as it was in a different ED case.
After all, if a chief minister is not supposed to enter office or sign any files, what does liberty mean to a politician and chief minister?
The house of cards constructed by the Enforcement Directorate in the alleged liquor policy scam has fallen with bail being granted to almost all the accused in the matters. The view of the court in almost all the orders stays similar — that there is no direct evidence linking the accused in the matters and that there is a delay in the start of the trial when the agency has all the evidence in hand.
The draconian elements of the PMLA are beginning to be worn down by a powerful wall of defence erected by our honourable judges. Every statutory limitation is subordinated to the fundamental protection under Article 21. The most concerning part, of course, is Section 45, which makes it very hard for the accused to get bail.
According to the rule, the accused shall only be granted bail if the court has reasonable reasons to believe that the accused did not commit the claimed act. In a society where trials take months or years to begin and conclude, this is akin to death by a thousand cuts as the accused rots in jail without being tried or convicted.
The PMLA is a textbook example of how the Modi government has used the law to settle political scores, destabilise governments, and silence the Opposition. According to a parliamentary reply, just 195 instances were reported under the PMLA in 2018-19, compared to 579 in the first two months of 2023. Arrests under the liquor policy scam, the M3M cases, and arrests of opposition political figures have all increased in recent years.
These cases effectively sum up the PMLA's evolution over the last two decades: from a law designed to deal with serious criminals and law-breaking corporations to a law that can be used against anyone whenever money is allegedly exchanged, giving ED officers virtually unrestricted authority to apply harsh provisions.
With the courts coming down heavily on multiple ED cases, there is an urgent need to work up the act and corroborate it with the Constitution and personal liberty. It is upon the legislature to act on it first. If not, the Supreme Court should read down the stringent and draconian provisions for the betterment of citizens and the upholding of constitutional values.
(Kumar Kartikeya is a legal researcher. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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