‘Arrest illegal… unprecedented assault on tenets of democracy’: Delhi CM Kejriwal to SC

Opposing Kejriwal’s plea against his arrest, the ED’s affidavit had said the arrest of a person, “however high he may be”, for commission of offence based on material can never violate the concept of free and fair elections. The ED said if it is accepted that such an arrest will violate the concept of free and fair polls, “politicians who are criminals would be granted immunity from arrest on the ground that he is required to canvass in the election”.

In his rejoinder, Kejriwal maintained that his “arrest constitutes an unprecedented assault on the tenets of democracy based on ‘free and fair elections’ and ‘federalism’, both of which form significant constituents of the basic structure of the Constitution”.

He also refuted the probe agency’s charge that the AAP utilised kickbacks generated from the case in the Goa Assembly elections. In the rejoinder, he also countered the agency’s claim about “large-scale destruction of evidence” by the accused and others in the case and said “there is not even a single averment alleging destruction of evidence of any kind by” him “and, hence, the said ground is devoid of any merit”.

The ED had said “a total of over 170 (approx) mobile phones were changed/destroyed by 36 persons (accused and others involved) during the period of scam and when the scam and irregularities in the Delhi Excise Policy of 2021-22 became public”.

Responding to this, Kejriwal said the ED, “being devoid of any cogent reason, is now raising frivolous and fictitious grounds for justifying” his “illegal arrest”.

On AAP allegedly receiving money from the South Group – a group of Southern politicians – and using it in 2022 Goa polls, the rejoinder said the agency had relied on a “few self-serving statements of hawala dealers about alleged cash transfer without any corroboration or link with the facts of the present case”.

He added, “There is absolutely no evidence that an amount of Rs 45 crore, which allegedly came from South Group, was utilised by AAP in the Goa election. There is no statement or evidence to prove (it)”.

Kejriwal alleged that the ED coerced and pressured witnesses to give statements against him.

Referring to one such statement by Magunta Srinivasulu Reddy, the YSRCP Lok Sabha MP from Ongole in Andhra Pradesh, Kejriwal claimed it was only to falsely implicate him so as to secure a pardon for Reddy’s son, Raghava Magunta, who was arrested by ED in the case. The Delhi CM said, “MSR has now joined TDP and is contesting the Lok Sabha elections on its ticket. That TDP is in alliance with BJP for the present general elections and is a part of NDA”.

Kejriwal further said his arrest “just before the Lok Sabha elections, when the schedule… had been announced and the Model Code of Conduct had come into play, speaks volumes about the arbitrariness of the ED”. “This timeline establishes the fact that the petitioner has been arrested intentionally with a malafide intent without any necessity to arrest,” he added.

The Delhi CM said he is “neither… an accused nor a suspect in the scheduled/predicate offence, wherein, investigations are continuing since 17.8.2022 and despite three chargesheets/ supplementary chargesheets having been filed, absolutely nothing has surfaced against” him “till date”.

He added, “Investigations in the PMLA case are continuing since 22.8.2022 and despite five prosecution complaints/supplementary prosecution complaints having been filed”, he “was never called upon to be associated until 31.10.2023”.

The rejoinder said “the entire basis of” Kejriwal’s “arrest rests upon certain statements which are in the nature of self-incriminating confessions by alleged accomplices who have been given immunity by way of pardon etc”. “These alleged incriminating evidences were obtained under an arrangement without any corroborative evidence”, he said, and asked if “such statements could qualify as materials to reach the conclusion of guilt as envisaged U/s 19 PMLA to justify the arrest of a sitting Chief Minister of NCT of Delhi or a National Convenor of a National Political Party in India amid General Elections?”

The Delhi CM also disputed the ED’s contention that a political party would fall within the definition of a person under PMLA. He said, “Once a ‘political party’ is registered with the Election Commission of India under Section 29-A of The Representation of the People Act, 1951, under no circumstances could it be brought within the purview of PMLA on an assumption that it would be covered in Clause (vi) of Section 2(1)(s) of PMLA…”

He also referred to a Ministry of Finance circular dated October 18, 2000, “wherein it has been categorically stated that political parties are not “business”. The said circular states a political party to be a charitable institution”, he added.

The SC had on April 15 issued notice on the Delhi CM’s plea challenging his arrest and fixed it for hearing in the week commencing April 29.

Kejriwal approached the Supreme Court after the Delhi High Court dismissed his plea against his arrest on April 9, observing that the ED was in “possession of enough material” which showed he was “actively involved in the formulation” of the excise policy.