FOR quite some time there was a sharp criticism about the Modi government’s use of central agencies like CBI and ED to defame important leaders of the opposition and often imprison them. The process of such weaponisation of the agencies became increasingly pronounced after amendments carried out to the PMLA (Prevention of Money Laundering Act) enabling the ED to arrest and imprison the accused and keeping them behind bars by making the securing of bail more difficult than other criminal laws. This made confinement without trial long and the process itself draconian, and more often than not, ending in unsuccessful prosecution.

This phenomenon was more than evident in the jailing of two serving Chief Ministers Hemant Soren of Jharkhand and Arvind Kejriwal of Delhi. The final outcome of these cases as decided by the courts brings out the obnoxious neo fascist method of the BJP led governance and unmistakable examples of electoral manipulation.  

Vindicating this phenomenon, a Delhi Court discharged Aam Aadmi Party supremo Arvind Kejriwal, Manish Sisodia, Telangana Jagruthi founder K Kavitha and 20 others in the corruption case related to the alleged liquor policy scam case.

In a strongly worded order running into 598 pages, the special judge of Rouse Avenue Court rapped the Central Bureau of Investigation (CBI) for the manner of its investigation, while flagging various lapses on part of the probe agency.

The Court has observed that the prosecution case did not disclose even the threshold of a prima facie suspicion, far less the “grave suspicion” mandated by settled principles of criminal jurisprudence for proceeding further against the accused persons.

It added that the Excise Policy case, as sought to be projected by the CBI collapsed before judicial scrutiny and stood ‘discredited in its entirety’.

The Court further observed that “In a developing economy, policy changes are routine and often necessary for increasing revenue, improving regulatory frameworks, or advancing public welfare objectives...The mere circumstance that a particular policy does not yield the expected outcomes, or that private participants lawfully earn profits under such policy, cannot, without more, justify criminal prosecution...economic and administrative decisions taken in good faith cannot be criminalised in the absence of clear prima facie material disclosing mala fides, quid pro quo, or abuse of office".

The Court said that procedural integrity of the policy-making process stood affirmed from the documentary record itself.

“In the absence of policy or demonstrably unlawful implementation, the prosecution theory is reduced to conjecture. Private persons who sought to derive commercial advantage from a policy validly framed and lawfully implemented, without any established violation of policy conditions or statutory prohibitions, cannot be compelled to face the rigours of criminal prosecution. This Court finds no apparent breach of restrictions relating to “related entities” or any other policy condition which could, by itself, attract criminal liability,” the Court said.

Further, the Court said that the CBI investigation proceeded on a “predetermined trajectory, implicating virtually every person associated with the formulation or implementation of the policy in order to lend an “illusion of depth and credibility to an otherwise fragile narrative.”

The information provided by Union Minister of State for Home Nityanand Rai on August 6, 2024, regarding the data since 2014 has been one of the reasons even for the Supreme Court to reevaluate the efficacy and equity of extended pre-trial detention in such cases, leading to a substantial change in bail jurisprudence under PMLA.  The disquiet of the apex court was evident in Justice Gavai's observation that the “Prosecution has to be fair. A person who incriminates himself has been made a witness. Tomorrow, you pick up anyone as you please? You cannot pick and choose any accused. What is this fairness?” The bench was also critical of the Delhi High Court's decision not to extend the benefit of PMLA Section 45 (1) to K Kavitha by scathingly observing that “courts need to be more sensitive and sympathetic towards the category of persons included in the first proviso to Section 45 and similar provisions in the other Acts”. These remarks are not mere off hand comments but reflect the Supreme Court's dissatisfaction with how stakeholders are approaching bail applications under the PMLA.

These judicial indictments of the Government unravel the pernicious governance of the BJP establishing what has come to be termed as electoral authoritarianism. All those who cherish democracy have to come together to oppose and resist such onslaughts.