The continued incarceration of Delhi Chief Minister Arvind Kejriwal in the midst of a general election highlights the hard political realities that seem to determine which leader gets prosecuted or arrested on allegations of corruption. Over the decades, it has become clear that only an unfriendly regime usually pursues charges against key political rivals; and that the status of relations between the party that runs the government of the day and those facing such charges dictates the course of action for supposedly independent agencies. That the number of leaders whose offences are forgotten as soon as they join the ruling party or become an ally is increasing, while jail time is reserved for adversaries. In Mr. Kejriwal’s case, there is an astounding element of politics vitiating his arrest and prosecution for allegedly taking kickbacks to formulate a liquor policy favourable to the industry. Mr. Kejriwal, who leads the Aam Aadmi Party, has been denied participation in the campaign for the general election. The adverse implications of his absence are quite obvious, even though there is no law that spares politicians from criminal liability in election time. The Delhi excise policy case was registered in August 2022. The CBI and the Enforcement Directorate (ED) have filed charge sheets, but the investigation has been continuing piecemeal. Witnesses have been giving multiple statements, with each one containing newer material.
The power to arrest a suspect exists only to prevent suspects from fleeing justice, influencing or threatening witnesses and tampering with evidence, or repeating a crime. There is a huge gulf between the power to arrest and the necessity to arrest. It is a disturbing reality that political leaders have been arrested in this case on the basis of statements made by approvers, and not any independent witnesses. The timing of the arrest has also become an issue of substance. That Mr. Kejriwal did not respond to multiple ED summonses may be cited as a reason for his being arrested now rather than months ago. However, this expectation that the accused should “cooperate” with the investigation agency is quite peculiar. Agencies ought to be able to prosecute people without their statements. It is known that Section 50 of the Prevention of Money Laundering Act has been weaponised by the ED to record a statement that is admissible and then record the person’s arrest. Whether non-appearance in response to a summons is a ground for arrest and denial of bail is a question that has arisen in this case. Equally tenable is the question whether arresting serving Chief Ministers through central agencies and keeping them in prison throughout a multi-phase election does not amount to subversion of federalism and democracy.
