ENFORCEMENT DIRECTORATE SUCCESS IN KEJRIWAL BAIL CASE MAY BE A FLASH IN THE PAN UNDUE STRESS ON TECHNICALITIES CANNOT COVER UP LACK OF SUBSTANTIVE EVIDENCE

The Enforcement Directorate has managed to throw a spoke into the wheels of Aam Aadmi Party’s celebrations of leader Arvind Kejriwal coming out on bail by approaching the Delhi High Court post-haste even before it could lay hands on the court’s order. And with the high court granting a temporary stay on the ground of certain procedural issues. But it may be a pyrrhic victory as the stay remains in force only until the ED challenge is heard and disposed of by the court in the next 2-3 days.

The manner in which the ED has sought to block natural justice has obviously pleased its political masters, who want to see Kejriwal and his party finished for good as they see a real threat from the growing clout of the party. But the manner in which the agency has acted to delay the Delhi chief minister’s release has raised
widespread condemnation. But the big question is how far can the agency cover up its failures by resorting to procedural issues and what will happen when the court goes into the substantive issues and the merit of ED’s objections, particularly in the context of the original court granting the bail expressing serious doubts about the case.

The ED’s success in obtaining a stay was primarily on technical grounds rather than on the merits of the evidence presented against Kejriwal. The agency argued that it was not given adequate opportunity to rebut the arguments presented by Kejriwal’s counsel during the bail hearing. The High Court’s acceptance of this argument suggests a procedural rather than a substantive victory for the ED. This raises questions about the
strength of the ED’s case against Kejriwal.

The inability of the ED to convincingly establish Kejriwal’s involvement through evidence during the initial bail proceedings could indicate weaknesses in their investigation or in the evidence collected. In fact, the 25-page order by the Rouse Avenue court judge has serious strictures against the way of ED, for submitting insufficient evidence and showing potential bias in investigation into the alleged money laundering case. While the money laundering has been established, the agency has failed to link Kejriwal with the transactions.

The court also criticized the ED for relying on statements from coaccused and approvers without
corroborating evidence. The observations of the court point to a painful reality of the present day politics when its order states: ‘The court has to take a pause to consider this argument which is not a potable submission that investigation is an art because if it is so, then, any person can be implicated and kept behind the bars by artistically procuring the material against him after artistically avoiding/withdrawing
exculpatory material from the record.’

While emphasising the principles of natural justice and fairness in the investigative process, the judge
noted that that the ED relied heavily on the stringent bail conditions under Section 45 of the PMLA,
overshadowing the principles of legal fairness and presumption of innocence with the help of procedural technicalities. The court further noted that Kejriwal had not been summoned by the court but was still in judicial custody based on the ED’s ongoing investigation claim.

This undue stress on procedures is what weakens the ED case further. Even while approaching the high court for relief, the agency’s counsels were not raising the substantive issues that came up in the court’s observations, but about the procedures of hearing. The agency counsel, Additional Solicitor General (ASG) SV Raju, complained to the high court that he was not given the ‘full opportunity’ to argue his case and
even termed the judge’s order ‘perverse’.

Kejriwal has consistently maintained that the ED failed to produce any credible evidence against him. His insistence on this point gains credence given the court’s observations. If the ED indeed lacks compelling evidence, it raises questions about the agency’s case. While the ED has secured a legal manoeuvre in
obtaining the stay, the substantive aspects of the case remain unresolved. The judicial scrutiny and observations during these proceedings highlight broader implications for both the legal process and the political landscape in India.

The final outcome of this case will depend on how the Delhi high court evaluates the evidence presented by
the ED. If the court continues to question the adequacy and reliability of the evidence, it could potentially lead to a favourable outcome for Kejriwal. Conversely, a reversal could bolster the ED’s position and impact Kejriwal’s legal and political standing.