Arvind Kejriwal was arrested by ED last week in Delhi liquor policy case
Appearing in Delhi High Court for Chief Minister Arvind Kejriwal, Senior Advocate Abhishek Singhvi today tore into the Enforcement Directorate's case in the liquor policy case, in which three top leaders of the Aam Aadmi Party (AAP) are currently in jail.
Here's a rundown of arguments and counter arguments
On Timing Of Arrest: A sitting Chief Minister, Mr Singhvi said, is arrested on the cusp of election. "The heart of democracy is a level-playing field. It means free and fair elections. If you do anything to make the level-playing field uneven, then you are impinging on basic structure. This arrest on the cusp of election is intended to disable the person from campaigning and give a body blow to the party, and third, you end up scoring some points before even the first vote is cast," he said, adding, "Of course, Chief Ministers can be arrested, but the question is timing."
On ED's petition for 3 weeks' time: Mr Singhvi said the request is completely mala fide. "Even one day incarceration is an issue of fundamental right. What reply can ED file? It can't be different from grounds of arrest."
On Prevention Of Money Laundering Act: Mr Singhvi said there are three phrases in Section 19: "material in possession", "reasons to believe" and "guilty". "These are vital conditions for arrest. Prior to any arrest, these conditions must be satisfied on the files and on the papers. This threshold has been put deliberately high because of the corresponding provisions under Section 45 of PMLA, which puts the threshold for bail very high. So, there is counterbalancing," he said.
These phrases, he said, go towards the basic point of clear demonstration of the necessity to arrest. "You have the power to arrest, but it must be conditioned and satisfied by the high conditions under Section 19," he said. "The question is what was the necessity to arrest me today."
On ED's No-Cooperation Point: "They say I have not cooperated. Non-cooperation is one of the most abused phrases since the ED has become active," Mr Singhvi said. "Can you say I will arrest you because I am exercising my right against self-incrimination? This will hit Articles 20 and 21 of the Constitution on the head. Suppose I say I don't know or that I have very poor memory. Which law says I am arresting you because you are not incriminating yourself"
ED's custodial interrogation plea, he said, was based on non-cooperation. "They say he is to be interrogated with regard to his role. I say, if you want to investigate me for my role two months before the election, is it not directly against the necessity to arrest?"
On Statements And Co-Accused: Mr Singhvi said the ED is following a step-by-step process. "I record the statement. There is nothing against me in that step. Frequently there are few more statements recorded. In (the case of) Sanjay Singh, nine statements were recorded and there was nothing against me."
"The next step is to arrest the person. He suffers in jail and is then made to apply for bail. Next step, the ASG tells the court I have no opposition to bail. The reason cited is he has back pain. The next step is that he comes out and makes a statement against me. Next he turns approver and is granted pardon," Mr Singhvi said.
"This has happened in every case in the liquor policy case. It is blowing to smithereens the constitutional safeguards," he said, adding that these statements are no corroborated.
On Approvers: Mr Singhvi said it is easy to extract statements out of co-accused. "He is concerned about himself, that's why little weight should be given to statements of co-accused," he said.
"This species called approver. In our history, whether for good motives or bad motives, the courts have dealt with phrases like Jaichand and Trojan Horses. The history looks very harshly at these Jaichands and Trojan horses. They gave daga (betrayal)." The reference was to Jaichand, a king in the 12th century. According to Prithviraj Raso, Jaichand refused to help Prithviraj Chauhan and joined forces with the invading king Muhammad of Ghori. The Prithviraj Raso is disputed by historians, but the name Jaichand has become synonymous with the word "traitor".
An approver, Mr Singhvi said, is the "most untrustworthy friend".
Stressing that "there is absolutely no reason to ask for time". "This is a matter where democracy itself is involved. Basic structure is involved. Level playing field is involved. A day is too long if arrest is illegal. Day by day, ED is achieving its objective by seeking time," he said.
What the Centre Said
Appearing for the ED, Additional Solicitor General SV Raju sought three weeks' time to file a reply in the main matter and also said he wanted to reply to Mr Kejriwal's petition for interim relief.
He also objected to multiple lawyers appearing for Mr Kejriwal. "Even ED will request that five people be heard for ED. You want a level-playing field, I am saying, let there be a level-playing field here as well."
In important matters such as this, he said, "people often play to the gallery, so the break has to be out".
When the court said that it will issue a notice in the main matter, Mr Raju replied, "On interim relief also, I have the right to file a reply. If I am not entitled to file a reply, then there is no need to hear me. I can't be deprived of my right to file a reply."
He also said he got a copy of Mr Kejriwal's petition only yesterday.
Appearing for the AAP leader, Advocate Shadan Farasat said the petition was moved on Saturday. "We cleared the objections and then shared the plea with the ED. We served them and they had enough time. A Delay very severely prejudices us in this case," he said.
To this, Mr Raju replied, "We wrote emails to them asking for a copy on March 25 and 26. They deliberately did not supply the petition to us. They could have supplied the copy to us with objections. The reason they did not supply is because they did not want us to prepare," he said.
The court has said it will upload its order by 4 pm today.