Arrest of a sitting CM: Requiem for the `Rule of law’?

Apr 01, 2024
By PUCL Bulletin Editorial Board

What does the dramatic arrest of Arvind Kejriwal, the  Chief Minister of Delhi, on 21st March, 2024 signify for Indian politics and democracy?  Is it a mere flexing of political muscle by the Modi-led BJP Union government, supremely confident that there will be no political fallout by its brazen act of abuse of police powers it has armed itself with? With elections just a few weeks away, is the BJP signalling its total control over India’s security agencies and political power and that there are no democratic institutions left in India – including the higher judiciary and other constitutionally mandated bodies – which will interfere in this politically motivated  arrest? Or is the Modi-Shah government signalling, that even as they undertake the taks of dismantling constitutional democracy and assuming full authoritarian control of India’s polity, they fear none – no political party, leader and even the constitutional institutions – Is this the intimation of the final assault to dismantle the Indian Constitution?

Whatever the merits and demerits of the reasons put forth for justifying the arrest of the Chief Minister of Delhi from his residence, in full media glare, under the PMLA, a simple question needs to be asked: what was the necessity of arresting a popular leader, who is not going to abscond? Or tamper with evidence? Or intimidate witnesses.

The ED case is entirely made up of official documents gathered by the ED officials in over 2 years of supposed investigation – so what fresh documents do they think they will get by arresting Kejriwal? As for witnesses, most of them have been examined and investigated. Much more damning, what is the ED going to gain by custodial interrogation of Arvind Kejriwal, when he has already publicly stated that he has nothing to confess and does not have any facts to share about the prosecution? After all, isn’t it the responsibility of the prosecution to gather evidence and no rely on accused persons to supply them with documents!

There are eerie parallels between the arrest of Arvind Kejriwal as the sitting CM who was issued more than 8 summons by the ED and another CM, Hemant Soren of Jharkhand, who was forced to resign in view of the repeated summons issued by the ED under threat of arrest. On 31st January, 2024, Hemant Soren was arrested under sections of PMLA, soon after he resigned as the CM.

The freezing of the accounts of the Congress party by the IT Department, just as the election are round the corner, also makes it unambiguous that the BJP government wants to smother, silence and suppress the entire spectrum of opposition political parties using the entire arsenal of criminal laws as weapons of `Operation Dismantle Constitutional Democracy’.  Hence the arrests are nothing but another set of brazen attempts to undercut the  ability of  a political party to fight an election. All this was presciently envisaged by the internationally respected `V-Dem’ institute from Sweden which categorised India as an `Electoral Autocracy’.

The arrests of top political leaders – no less than democratically elected Chief Ministers of opposition led states and senior Ministers – is meant to send out a message to not just the political class but also to citizens demanding accountability and dissenters questioning the Union government: when high constitutional Office holders like elected Chief Ministers themselves can be arrested at the whims and fancies of the Union government, what protection can others expect when they become targets of the ire of the ruling party. This display of brazen power is also meant to send out a message of fear – nobody is safe in Modi’s India and if you threaten the political hegemony of the BJP, you can be the target of ED summons, raids, eventual arrest and prolonged imprisonment.

The threat of arrest is the sword of Damocles which hangs over the heads of the entire opposition. Arrest under PMLA is likely  to mean long years in prison as the bail provisions under the PMLA (as indeed under other equally draconian and anti-democratic laws like the UAPA) make it almost impossible to obtain bail quickly.

“The law defines the offence; the state defines the offender”.

At the core of the issue of weaponising criminal laws by repressive governments is the legal doctrine formulated by K.G. Kannabiran, noted lawyer and jurist who pointed out that ultimately it is the state (meaning the ruling government) which has been given the authority in law, to use/misuse/abuse criminal laws. Unfortunately, both criminal laws and also constitutional law, as it exists, now do not have a provision fixing accountability, and therefor liability, on police officials and the political executive who authorise the mis-use of laws like PMLA, UAPA and other anti-democratic laws against political opponents, dissenters, opposition parties and citizens.

What is equally disheartening is the response of the judiciary to what are apparently politically partisan use of the PMLA to arrest people with the sole purpose of ensuring their lengthy imprisonment without bail. The figures of PMLA prosecutions between 2005 – 2023 paints the sordid tale of weaponising the PMLA against political opponents: of 5,906 PMLA cases registered, trials have been completed only in 25 cases, constituting 0.42% of cases. Investigations have been completed and chargesheets filed in only 1,142 cases so far. A study undertaken by the Indian Express in 2023 showed that since the Modi-government took charge in 2014, of the 121 prominent politicians implicated under PMLA, 115 opposition leaders – i.e. 95% – were booked, raided, questioned and arrested.  As the Electoral Bonds revelations showed, in many cases, people and firms who were blacklisted or raided were found to have paid huge donations to the ruling BJP via the  electoral bonds route only to have their cases eventually dropped!

Even in the Delhi Liquor policy – PMLA – ED case, Arvind Kejriwal has been arrested, allegedly implicated by an approver, Sarath Chandra Reddy of Aurobindo Pharma based in Hyderabad.

Sarath C. Reddy was arrested on 10th November, 2022. Within days of his arrest he/ Aurobindo Pharma purchased Electoral Bonds for Rs. 5 crores which was redeemed by the BJP party on 21st November, 2022. Thereafter a number of Electoral Bonds were purchased by Aurobindo Pharma, and media reports reveal that about Rs. 55 crores in Electoral Bonds purchased by the company were redeemed by the BJP. In June, 2023 Sarath Reddy turns approver implicating many AAP politicians including Arvind Kejriwal.

Does a quid pro quo exist between the ED controlled by the BJP government and Sarath Chandra Reddy to implicate Kejriwal? It is against this background that the remand report seeking custodial interrogation of Kejriwal for “detailed and sustained interrogation”.   assumes importance. The curious aspect is that despite investigating for more than 2 years, the ED is yet to show a clear money trail of evidence of the alleged corrupt money directly reaching Kejriwal or AAP.

The arrest of Kejriwal has to necessarily be examined from another lens: that of electoral democracy. The Universal Declaration of Human Rights under Article 21 recognises that, ‘Everyone has the right to take part in the government of his country, directly or through freely chosen representatives’. Under 21(3) the UDHR states that ‘the will of the people shall be the basis of the authority of government’ and that this ‘will shall be expressed in periodic and genuine elections’

In India, democracy has been held by the Supreme Court to be part of the basic structure of the Indian Constitution. By basic structure, the Courts reference an element of the Constitution which is so basic, that when that element is rendered nugatory, the very identity of the Constitution is destroyed.

As Justice Khanna put it in Indira Gandhi v Raj Narain,  ‘Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that election are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of deference to mass opinion…’

By arresting two  Chief Ministers, the elections have become that much less fair and that much less free. The arrest of the Chief Ministers of Jharkhand and Delhi,  has put into question the most cherished dimension of India’s self image- that we are the world’s largest democracy. It is up to the constitutional courts to recognise that what is at stake is not just the abuse of the PMLA but really the survival of a fundamental feature of our constitution, namely electoral democracy. The instrumentalization of the PMLA is an attack on the basic structure of the Indian Constitution.

It is a tragedy that the constitutional courts have not yet responded to the serious constitutional implications of the arrests with a sense of urgency. The disappointment with the Courts was best captured by Kapil Sibal who in his appearance for K Kavita of the BRS’s bail petition before the Supreme Court, noted that, ‘When the history of this court will be written, this will not be a golden period’.

As we head into the elections, we are hoping that the Courts do stand up at this crucial moment and ensure that essential dimensions of India’s constitutional  democracy are safeguarded.