The Supreme Court on Friday (July 12) granted interim bail to Delhi Chief Minister Arvind Kejriwal, raising questions on the legality and necessity of his arrest in March by the Enforcement Directorate (ED) in the Delhi excise policy case. A two-judge bench of Justices Sanjiv Khanna and Dipankar Datta referred some questions on the ED’s power to arrest under Section 19 of the stringent Prevention of Money Laundering Act (PMLA), 2002 to a larger bench. In the meantime, the court said that Kejriwal has “suffered incarceration for over 90 days” and has to be released on bail till the larger bench settles the issue. While the fine print of the ruling is awaited, here are key aspects of the ruling that have a wider impact on the agency’s powers and the possible checks and balances on it. Also, while the verdict is a shot in the arm for the Aam Admi Party, its leader Kejriwal will continue to remain in custody since he is facing arrest in the CBI case in the same excise policy case. What is Section 19 of the PMLA? Section 19 of the PMLA deals with the power to arrest. Section 19(1) states that if the ED Director “has on the basis of material in his possession, reason to believe (that reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.” Essentially, the provision states that the arrest has to be on the basis of material in possession of evidence with the ED and Kejriwal’s case is that at the time of his arrest, the ED had no material directly against Kejriwal and hence his arrest was not necessary. On the other hand, the ED has buttressed the words “reason to believe” in Section 19, arguing that the Director may not go into the materials but has reason to believe, which is subjective and varies during the investigation. The legal validity The Supreme Court in the landmark Vijay Madanlal Chaudhary ruling in 2022 had upheld the constitutional validity of Section 19. Although it did not specifically go into the aspects of necessity to arrest and the standard of evidence (proportionality aspects) required to arrest, the SC had ruled that the vast power to arrest itself is not unconstitutional. The SC had accepted a key argument of the ED that only high-ranking officials of the agency, after recording reasons in writing, can make an arrest. “Investing of power in the high-ranking officials in this regard has stood the test of reasonableness with that requirement of giving reasons for exercise of power by itself excludes chances of arbitrariness,” the court had said.
