Mere non-cooperation with ED not a ground for arrest, Kejriwal tells SC
Delhi Chief Minister Arvind Kejriwal put up a spirited stand in the Supreme Court on Monday against his arrest in the liquor policy case, saying mere noncooperation with the Enforcement Directorate (ED) cannot be a ground for his incarceration by the Central agency.
“My arrest came after the declaration of the Model Code of Conduct. Was I a hardened criminal or a terrorist who would run away… So, did you leave a guilty Chief Minister to roam free all these years?” senior advocate A.M. Singhvi, appearing for Mr. Kejriwal, submitted before a Bench of Justices Sanjiv Khanna and Dipankar Datta.
‘Right to not speak’
Mr. Kejriwal contended he had a right to not give an incriminating statement against himself to the ED. He invoked his fundamental right against self-incrimination under Article 20, the right to due procedure and liberty (Article 21) of the Constitution and even referred to the Magna Carta.
“... I have a right to not speak against myself,” Mr. Singhvi said.
Justice Khanna, at one point, asked whether Mr. Kejriwal had applied for bail in the trial court as yet. Mr. Kejriwal’s petition, after all, was against both his arrest and remand.
Additional SolicitorGeneral S.V. Raju, for the ED, pointed out that the Chief Minister had not challenged subsequent remands. He had been remanded ve times so far. He is currently in judicial custody till May 7.
“I am not saying Chief Minister has immunity, but does he have lesser rights,” Mr. Singhvi queried in a retort to the ED’s adavit that “criminal” politicians did not have immunity from arrest, especially to campaign for the Lok Sabha election.
Justice Khanna wondered if Mr. Singhvi was saying that an arresting authority ought to objectively weigh factors both for and against a person before arrest. The power to arrest did not necessarily mean an obligation to arrest, Mr. Singhvi replied. The ED’s power to summon under Section 50 of the Prevention of Money
Laundering Act (PMLA) did not inherently include the power to arrest under Section 19 of the law, Mr. Singhvi noted. He said arrest should be based on material in the possession of the ED which gave it reason to believe that the person was guilty of an offence punishable under the PMLA.
“... Can the ED say ‘you did not come’ and that by itself is grounds for holding you guilty and arresting you under Section 19?” Mr. Singhvi asked.
“I was arrested the day I was unable to get interim protection from the Delhi High Court. You [ED] came to my house and spent 10 hours, then arrested me. The ground for arrest should be positive and inculpatory, not because I was unable to get protection or I did not cooperate. Where is the ‘reason to believe’, where is the material in your [ED] possession?” Mr. Singhvi challenged.
Arguments would continue on Tuesday.
My arrest came after the declaration of the Model Code of Conduct... So, did you leave a guilty Chief Minister to roam free all these years? ARVIND KEJRIWAL Delhi Chief Minister