'Illegal Arrest' Constitutes Unprecedented Assault on Democracy Tenets: Kejriwal to SC

Illegal Arrest Constitutes Unprecedented Assault on Democracy Tenets: Kejriwal described his arrest under the Prevention of Money Laundering Act (PMLA) by the Enforcement Directorate (ED) as an example of how the ruling party-led government has misappropriated the central agency... and its wide powers... to crush its biggest political opponent, the Aam Aadmi Party (AAP).

According to the CM's rejoinder, which he filed in response to the ED's affidavit before the top court, he was arrested on March 21 in the Delhi excise policy case.

As part of the ED's affidavit, it said arresting someone for commission of an offence based on material can never violate the concept of free and fair elections, no matter how high he may be.

As the ED stated, if such an arrest is accepted as violating the concept of free and fair elections, criminal politicians would be granted immunity from arrest for canvassing.

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Kejriwal argued in his rejoinder that his arrest represents an unprecedented assault on the democratic tenets of 'free and fair elections' and 'federalism', which comprise the Constitution's basic structure.

In addition, he denied the probe agency's claims that the AAP used kickbacks from the case to influence the Goa Assembly elections.

Delhi Chief Minister Arvind Kejriwal has told the Supreme Court that his arrest by the Enforcement Directorate (ED) in the liquor policy case is illegal and constitutes an “unprecedented assault” on the tenets of democracy based on “free and fair elections and federalism.”
Read… pic.twitter.com/a3QVtF6K9G

— Live Law (@LiveLawIndia) April 27, 2024

The rejoinder also refuted the agency's assertion that the accused and others destroyed evidence in large quantities, saying that "there is not even a single allegation alleging that" he destroyed any evidence of any kind, so that ground is without merit.

A total of 170 mobile phones (approximately) were destroyed by 36 people (accused and others involved) during the scam and when the scam and irregularities in the Delhi Excise Policy of 2021-22 were made public.

In response, Kejriwal said the ED has raised frivolous and fictitious grounds for justifying his "illegal arrest" without any cogent reason.

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When AAP was accused of receiving money from the South Group – a group of Southern politicians – and using it in the 2022 elections in Goa, the rejoinder stated that the agency relied on a few self-serving statements about alleged cash transfers without corroboration.

As he noted, there is absolutely no evidence that the alleged amount of Rs 45 crore, which allegedly came from South Group, was used by AAP in the Goa election.

According to Kejriwal, the ED coerced and pressed witnesses to make statements against him.

A YSRCP Lok Sabha MP from Ongole in Andhra Pradesh, Magunta Srinivasulu Reddy, made such a statement, Kejriwal claimed, in order to secure a pardon for Reddy's son, Raghava Magunta, who was arrested by the ED.

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Delhi CM said, "MSR has now joined TDP and is contesting the Lok Sabha elections on the TDP ticket. The TDP is in alliance with BJP for the current general elections.

According to Kejriwal, his arrest "just before the Lok Sabha elections, when the schedule... was announced and the Model Code of Conduct had come into play, speaks volumes about the arbitrariness of the ED".

"This timeline establishes that the petitioner was arrested intentionally without any necessity for the arrest," he said.

According to the Delhi CM, he is neither an accused nor a suspect in the predicate/scheduled offence, for which investigations have been ongoing since 17.8.2022 and though three chargesheets/supplementary chargesheets have been filed, no charges have been brought against him so far.

Despite five prosecution complaints/supplementary prosecution complaints being filed, he was never asked to be involved in the PMLA case until 31.10.2023.

"The entire basis of" Kejriwal's "arrest is based on self-incriminating confessions made by alleged accomplices who have been pardoned" according to the rejoinder.

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“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?”

As well, the Delhi CM disputed the ED's claim that a political party falls within PMLA's definition of a person.

He added, “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…”

Further, he quoted a Ministry of Finance circular dated October 18, 2000, in which it was categorically stated that political parties are not "businesses".

On April 15, the SC issued notice of the Delhi CM's plea challenging his arrest and set the hearing for April 29.

The Delhi High Court dismissed Kejriwal's appeal against his arrest on April 9, observing that the ED had "sufficient evidence" showing he was "actively involved" in the formulation of the excise policy.

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