'Illegal arrest' constitutes unprecedented assault on tenets of democracy: Kejriwal to SC

Delhi Chief Minister Arvind Kejriwal on Saturday told the Supreme Court that his "illegal arrest" in a money-laundering case stemming from the alleged excise policy scam constitutes an unprecedented assault on the tenets of democracy based on "free and fair elections" and "federalism".

In a rejoinder to the Enforcement Directorate's (ED) reply affidavit filed on his petition challenging his arrest in the case, Kejriwal said the mode, manner and timing of his arrest just before the Lok Sabha elections when the Model Code of Conduct had come into play, speaks volumes about the "arbitrariness" of the agency.

Kejriwal claimed it is a "classical case" of how the Centre has misused the ED and its wide powers under the Prevention of Money Laundering Act to "crush" the Aam Aadmi Party (AAP) and its leaders.

"... It is submitted that the petitioner's 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," the rejoinder said.

It claimed that ED illegally 'picked up' a sitting chief minister and the national convenor of one of the national Opposition parties, five days after the general elections were announced and the Model Code of Conduct came into force.

"During an election cycle when political activity is at its highest, the petitioner's illegal arrest has caused grave prejudice to the petitioner's political party, and will provide the ruling party at the Centre an unjust upper hand in the ongoing elections," Kejriwal said in his rejoinder.

"The present case is a classic case of how the ruling party led central government has misused the central agency- Enforcement Directorate and its wide powers under PMLA to crush its biggest political opponent -Aam Aadmi Party and its leaders," the rejoinder said.

He said a level playing field, which is a pre-requisite for 'free and fair elections', has clearly been compromised with his illegal arrest.

It 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 the immunity by way of pardon etc.

"Whether such statements could qualify as materials to reach the conclusion of guilt as envisaged under section 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 in the midst of General Elections," it asked.

The rejoinder alleged the only objective of ED was to procure and obtain some statement against Kejriwal and as soon as the statement was taken, the mission of the probe agency was accomplished and thereafter, co-accused were neither arrested nor any further statements were taken.

It claimed the malicious intent of ED in conducting the investigation was apparent from its deliberate concealment of statements made by co-accused individuals where either no allegations were made or allegations were explicitly denied.

Kejriwal also said there is no link whatsoever established by the ED to claim that an amount of Rs 45 crore was transferred by the South group as advanced kickback which was then utilised by AAP in Goa elections.

"Not a single rupee was traced back to the AAP, and the allegations put forth in this regard are devoid of any tangible evidence, rendering them vague, baseless without any corroboration," the rejoinder said.

Kejriwal said the ED, in its reply affidavit filed in the apex court, has said that one of the reasons which necessitated his arrest was that he did not remain present before the investigating officer (IO) despite being summoned nine times.

He said the ED has said in its reply that in such a case, the IO was justified in forming an opinion that custodial interrogation would lead to "a qualitatively more elicitation orientated" questioning of the accused.

"The aforementioned tenor, text and contents of the reply leave no manner of doubt that the ED has acted in a most highhanded manner in a gross affront to the due process of law," he said.

In its reply affidavit filed in the apex court earlier this week, the ED has claimed that Kejriwal is the "kingpin and key conspirator" of the excise policy scam and the arrest of a person for an offence based on material can never violate the "concept of free and fair elections".

The ED arrested Kejriwal on March 21 after the Delhi High Court refused to grant him protection from coercive action by the federal anti-money laundering agency. He is currently lodged in Tihar jail under judicial custody.

On April 15, the top court issued a notice to the ED and sought its response to Kejriwal's plea.

As per the cause list uploaded on the apex court website, his plea is scheduled to come up for hearing on April 29 before a bench of justices Sanjiv Khanna and Dipankar Datta.

The high court had on April 9 upheld Kejriwal's arrest in the money laundering case, saying there was no illegality about it and that the ED was left with "little option" after he skipped repeated summonses and refused to join the investigation.

The matter pertains to alleged corruption and money laundering in the formulation and execution of the Delhi government's excise policy for 2021-22 which was later scrapped.