The arrest of the Chief Minister of Jharkhand, Hemant Soren, was unprecedented. The Enforcement Directorate (ED) claimed he was arrested after he had resigned.
This is not the entire truth. In fact, the ED had already decided to arrest him while he was at his residence. But the formal arrest took place within the precincts of the Raj Bhawan, where Soren had gone to hand over his resignation claiming that his party still enjoyed the confidence of the Jharkhand Legislative Assembly.
Arvind Kejriwal, however, was arrested while he was chief minister and continues to be so despite the special court remanding him to the ED’s custody for six days. Every leader of the opposition has been facing the threat of arrest under the provisions of the Prevention of Money Laundering Act, 2002 (PMLA). Often in the past, this government has used both the Central Bureau of Investigation (CBI) and the ED for either prosecuting or threatening prosecution to trigger defections in order to destabilise elected governments in opposition-ruled states.
This is the first time in the history of India that the investigating machinery and political establishment are working in tandem on such a large scale. We may have seen isolated instances prior to 2014 of a similar alignment of purpose with the CBI, but never before in such an insidious fashion.
The problem that confronts us, in the present context, is that the processes of law are so tardy that it is impossible to seek quick relief in matters of this nature. There are two fundamental reasons for this. One, the doors of the Supreme Court are not open in such cases. We are told that the Supreme Court is not the court of first instance and that the special court must be moved for bail. Two, early relief for the accused is near impossible. The journey from the special court to the Supreme Court takes a couple of months. Hemant Soren was arrested on January 31, and he is still languishing in judicial custody. So, the process itself becomes the punishment and the relief consequently, if it is granted, is of no value.
Take the case of Arvind Kejriwal. He is alleged to be the kingpin of the so-called liquor scam. Admittedly, nothing has been found in his possession during the course of the search that connects him to any money trail. In fact, there is no money trail that inculpates any of the accused. Besides, it is only after several successive statements by each of the accused that they have turned approver.
Secondly, the basis of arrest is statements made by the accused who have later turned approver. Each of the accused-turned-approvers does it for his or her own self-interest, to escape continuous incarceration.
Some of these accused, who run companies, find themselves in a situation where they are not likely to get bail till they turn approver and the allurement of becoming approver and thereafter not being prosecuted is enough for them to implicate others. The Supreme Court has, in a long list of judgements, held that the statement of an approver, being exceptionally flimsy evidence, cannot be used as the basis of any conviction unless independent evidence corroborating the statement of the approver comes to light. In this case, no such evidence is forthcoming.
The intent to prosecute is tainted, the so-called evidence is tainted and the timing of the arrest is actuated by political considerations. Then to ask the accused to move the special court deprives the accused of the right to participate in the electoral process, especially when he or she happens to be a leader of a political party, and in this case, a sitting chief minister. This would obviously impact the outcome of the election. Such a process is seriously prejudicial and perpetuates the already existing non-level playing field in favour of the government.
The other aspect that needs to be mentioned is that in a PMLA proceeding, bail can only be granted if the court comes to the conclusion that the accused is not guilty of the offence. I just wonder how such a conclusion can ever be arrived at by the court in the absence of a trial. Such ex-facie unconstitutional provisions of law have been upheld by the Supreme Court. If, in any given case, there is no evidence and the accused moves the special court, it is unlikely that he will be granted bail, applying the twin tests set out in the PMLA.
No less than the present Chief Justice of India has lamented upon the fact that the trial court, in exercising jurisdiction in the context of bail, seldom grants it. We see similar patterns of denial of bail emerging in various high courts.
The strategy of the present government seems to be clear. One, through the electoral bonds scheme, to create a non-level playing field by amassing wealth, being the party in power at the Centre. Two, just before elections are announced, start arresting leaders of political parties who are perceived to be a challenge to the BJP.
It is noteworthy that all the evidence the ED talks about against Arvind Kejriwal was available with it since August 2023. There has been no statement by any of the accused-turned-approvers after August 2023. Then why was it necessary to arrest Kejriwal in March 2024? He could well have been arrested in August 2023 itself. Curiously, he was not arrested then because if he was, by the time the elections were announced, he would have been out on bail. This pattern is followed across the country to silence the dissenting voices by exploiting the harsh provisions of laws, some of which are a hangover of the colonial era.
Our republic has been hijacked by processes that are repressive and un- constitutional. Our institutions have been stymied. Our enforcement agencies are enslaved. Our opposition is sought to be silenced, and the Supreme Court keeps its doors shut. Yet, we are the mother of democracy!
(Views are personal)
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Kapil Sibal | Senior lawyer and member of Rajya Sabha
