Special laws, missing proof

On February 27, a Delhi Court discharged Delhi’s former Chief Minister Arvind Kejriwal and 22 others in the Delhi excise policy case. This is not merely about the fate of certain political and business figures. It is about the manner in which special criminal laws are invoked, how arrests are timed, and how executive power curtails liberty.

For nearly two years, the scam dominated headlines. Raids were conducted, arrests were televised, and the narrative of a grand conspiracy was asserted with confidence. However, when the matter reached judicial scrutiny, the court was unconvinced that a prima facie case existed to proceed to trial against the principal accused. Discharge at that stage is not an acquittal after trial, but it is a judicial finding that the material placed by the prosecution does not even justify putting a person through the rigours of a criminal trial.

Significantly, the court made it clear that criminal liability cannot be inferred from the office a person holds or from suspicion alone. In relation to the Chief Minister, the court recorded that no contemporaneous document, no file noting, no electronic communication, and no financial trail was produced to connect him with any alleged manipulation of the policy or illegal gratification.

That is a categorical rejection of the prosecution’s central argument. The judgment also found that even the prosecution’s own approver, who claimed knowledge of events from policy formulation to alleged utilisation of funds, did not attribute any role to him. The only direct assertion linking him to the alleged conspiracy rested on an uncorroborated accomplice-like statement. The court reiterated the settled principle: one accomplice cannot corroborate another, and without independent corroboration, such material cannot sustain even the threshold for a charge. Importantly, the court rejected the broader premise that the policy itself was the product of a clandestine design.

One must remember what preceded this discharge. Kejriwal was first arrested by the Enforcement Directorate under the Prevention of Money Laundering Act (PMLA). While his challenge to that arrest was pending, the Central Bureau of Investigation (CBI) arrested him in relation to the predicate offence. The timing raised eyebrows. When the matter came up before the Supreme Court of India, the bench comprising Justice Surya Kant and Justice Ujjal Bhuyan granted bail. Justice Bhuyan recorded serious reservations about the timing of the arrest, noting that the CBI had not felt it necessary to take him into custody for over 22 months. When a constitutional court questions whether an arrest was intended to frustrate an earlier grant of bail, the issue becomes a question of institutional propriety and fairness.

Arrests without conviction

The excise policy case is a lens through which we must re-examine the working of the PMLA. Section 45 of the Act imposes the twin conditions for bail. An accused must satisfy the court that there are reasonable grounds to believe he is not guilty and that he is unlikely to commit an offence while on bail. In practice, this reverses the ordinary presumption of innocence at the stage of bail. The burden shifts heavily onto the accused, even before the trial begins.

Statistics on PMLA prosecutions also show how the courts have rejected the agency’s story in the majority of cases. There has been a sharp rise in registered cases and arrests, while convictions remain comparatively few. This imbalance between the power to arrest and the ability to secure convictions should concern anyone committed to the rule of law.

The discharge of Kejriwal and others, therefore, marks an important moment. It demonstrates that trial courts are prepared to scrutinise prosecution material rigorously and to insist that conspiracy be proved through material, not inferred through assumption. It reinforces a simple but powerful principle: criminal law cannot be invoked to convert a policy disagreement into a prosecution, unless the statutory ingredients of an offence are clearly disclosed.

The larger question now is legislative. The PMLA was conceived as a specialised statute targeting serious economic crime. If its provisions are being invoked in politically charged contexts with sweeping arrests and prolonged pre-trial attests, Parliament must revisit the balance between enforcement and liberty. If Parliament does not act, the burden will fall upon the higher judiciary to harmonise the statute with constitutional principles.

The judgment is a reminder that courts remain the final sentinel on the qui vive. In the enduring tension between power and liberty, it is the discipline of proof, not the volume of allegation, that must prevail.

(The writer is an advocate at the Supreme Court of India)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.