Supreme Court Verdict on the Legality Kejriwal's Arrest by ED Expected on Friday

The Bench, comprising Justices Sanjiv Khanna and Dipankar Datta, had reserved the judgment on 17th May, after comprehensive hearing.

Supreme Court Verdict on Kejriwal's Arrest

a.) Background and Current Status

The Supreme Court is set to pronounce its verdict on Friday, 12th July, regarding Delhi Chief Minister Arvind Kejriwal's petition challenging the legality of his arrest by the Enforcement Directorate (ED) in the liquor policy case. The bench, comprising Justices Sanjiv Khanna and Dipankar Datta, had reserved the judgment on 17th May, after comprehensive hearing. The verdict is likely to interpret threadbase the provisions of Section 19 of the Prevention of Money Laundering Act (PMLA), 2002, including the consequences visiting upon the arrest, should there be a material breach of any conditions or ingredients enumerated therein

b.) Distinction from Bail Application

It is important to note that this matter is separate and distinct from Kejriwal's regular bail application related to the Prevention of Money Laundering Act (PMLA) case, which is currently under the Delhi High Court's consideration. Previously, the vacation PMLA Judge, Nyay Bindu, had granted him regular bail, observing that Kejriwal appeared prima facie not guilty of the offence of money-laundering. However, before his release from Tihar Jail could be effected, the ED appealed to the Delhi High Court and obtained an interim "stay order," preventing his release. This issue remains pending before the Delhi High Court. Meanwhile, the Central Bureau of Investigation (CBI) has also arrested Kejriwal in their own criminal case, leading to further bail applications and appeals.

c.) Additional Charges and Complications

Further complicating matters, the ED has since filed another chargesheet before the Special PMLA Court, naming Arvind Kejriwal as accused No. 37—described as the "kingpin"—and the Aam Aadmi Party (AAP) as accused No. 38. The Special PMLA Court has taken formal cognizance of this chargesheet and issued production warrants for Kejriwal, incidentally also for 12th July, 2024

d.) Potential Outcomes and Consequences

While it is speculative to predict the outcome, if Kejriwal's arrest effected by the ED on 21st March 2024 is declared invalid or illegal by the Supreme Court, the bail matters under the PMLA, 2002, and the subsequent appeals would become infructuous for all intents and purposes. However, this does not guarantee his immediate release, as his arrest by the CBI remains in force, requiring a separate bail. Conversely, if the Supreme Court upholds the legality of Kejriwal's ED arrest, the trial is scheduled to begin on 12th July in the Special PMLA Court, presided over by Kaveri Baweja. Meanwhile, the regular bail applications in both the ED and CBI cases will continue to be heard and ultimately decided by the Delhi High Court.

Regardless of the outcome, it seems Kejriwal's release from Tihar Jail will be delayed further, pending the resolution of these legal matters.

e.) Side Note: Recusal of Justice Sanjay Kumar in Manish Sisodia Bail

Supreme Court Justice Sanjay Kumar has recused himself from hearing the bail petition of former Delhi Deputy Chief Minister Manish Sisodia, that came up for hearing today (11th July). Citing personal reasons, Justice Kumar's decision comes ahead of the scheduled hearing related to the money laundering and corruption cases linked to the Delhi liquor policy case allegedly involving Sisodia.

f.) Rescheduling of the Hearing

Originally, a three-judge Bench comprising Justices Sanjiv Khanna, Sanjay Karol, and Sanjay Kumar was set to hear the matter today. Following Justice Kumar's recusal, the matter is expected to be re-listed in the week commencing July 15th, after obtaining the orders of the CJI.

Summary of Supreme Court Hearing of SLP on Legality of Kejriwal's Arrest

a.) Detailed Examination of Legal Grounds

The Supreme Court had heard the Special Leave Petition (SLP) concerning the complex legal issues around the embattled Delhi Chief Minister Arvind Kejriwal's arrest in the Delhi Liquor Policy case in the months of April and May, before the summer vacation. Representing Kejriwal, Senior Advocate Dr. Abhishek Manu Singhvi persistently challenged the legality of his arrest by the Enforcement Directorate (ED), which occurred on March 21, 2024. During the 2-hour long hearing held on April 30, 2024, the Apex Court posed probing questions regarding the ED's actions and justifications. We had earlier presented the summarized proceedings of the previous day’s hearing.

b.) Supreme Court's Queries Signal Rigorous Review

The Bench comprising Justices Sanjiv Khanna and Dipankar Datta had posed five critical queries to the ED, reflecting the Supreme Court's intent to thoroughly examine the procedural and substantive aspects of the case. These questions focused on the necessity of adjudicatory proceedings prior to criminal proceedings, the interpretation of Section 19 of the PMLA in the context of Kejriwal's non-application for bail, and the implications of the time gap in the prosecutorial actions.

Key Questions from the Supreme Court

1. Adjudicatory vs. Criminal Proceedings: The Court queried whether criminal proceedings could commence without prior adjudicatory proceedings, especially given the absence of any attachment proceedings in respect of Kejriwal.

2. Comparative Analysis with Manish Sisodia's Case: The Justices asked which part of the judgement in Sisodia's case would apply to Kejriwal, indicating a nuanced interpretation of precedent.

3. Interpretation of PMLA Arrest and Remand Provisions: The Court verbally discussed the standards required for effecting arrest, the conditions precedent thereto, and remand provisions under the PMLA, emphasizing a balanced evaluation as distinct from determining guilt.

4. Consequences of Procedural Delays: The discussion highlighted the impact of delays in filing criminal complaints and initiating proceedings by the ED, with a specific focus on the prescribed time limits for the adjudicatory process under Section 8 PMLA.

5. Timing of Arrest Relative to Elections: The timing of Kejriwal's arrest, just before the general elections, was critically examined, suggesting potential political implications.

Legal Implications and Future Directions

The case had reserved its judgement on May 17, 2024, after hearing ED’s response to these queries, apart from its other arguments. The final judgement, now expected to be pronounced on 12th July, is anticipated to be pivotal in shaping the legal discourse around the arrest and its broader constitutional implications.

Constitutional and Legal Considerations Ahead

While it is premature to speculate upon the outcome of Kejriwal's petition, the Bench clearly intends to address significant constitutional questions concerning the harmonious interpretation of the statutory scheme of the PMLA, 2002, especially in respect of arrest, attachment of the “proceeds of crime” as well as the filing of the criminal complaint(s) in the jurisdictional Special PMLA Court. This examination is particularly relevant in light of the Apex Court rulings in the cases of Vijay Madanlal Chaudhary and Pankaj Bansal.

The considerations will probably focus on individual liberty and strict adherence to the due process of law as enshrined in Articles 20 and 21 of the Constitution. This approach emphasizes the Supreme Court's commitment to ensuring that legal proceedings adhere to statutory mandates while aligning with constitutional values, thus safeguarding individual rights against procedural overreach, in a scenario where serious offences of corruption and money-laundering have been alleged by public servant, holding high public offices.

To our readers we promise, we shall keep you updated.