India's Enforcement Directorate (ED), that deals with economic offences and is widely believed to be the handmaiden of the ruling BJP, has arrested Delhi’s Chief Minister Arvind Kejriwal for his excise liquor policy which it claims was formulated to favour a few. The few that it supposedly benefited paid Kejriwal and his party AAP a hundred crores as a bribe in return, which AAP used to fight elections in Goa. Thus, the proceeds of crime (bribery) were laundered for electoral purposes, hence attracting the Prevention of Money Laundering Act (PMLA). Kejriwal was arrested from his residence on 22 March and remanded to ED’s custody till 1 April for now till the judiciary orders differently. The evidence justifying arrest is that some would-be approvers, in a trial yet to commence and a chargesheet yet to be conjured up, say that Kejriwal received the bribe. Kejriwal’s defiance in refusing to attend the ED office for interrogation despite nine summonses issued to him was suggestive of his complicity in the offence. Hence the reason to arrest. All this on the virtual eve of Lok Sabha elections, which could well give Modi his third consecutive term as prime minister. The question that’s screaming out to be answered is ‘What does this episode portend?’

Was the arrest of Arvind Kejriwal legally justified? Even if you begin with the premise that all politicians are dishonest, the answer is an emphatic no. It’s the function of every political party in power to legislate fiscal policies. Just because such a policy benefits or provides an advantage to a section of the public cannot by itself be the genesis of the commission of a predicate offence, the proceeds from which fall within the purview of the PMLA. The evidence disclosed so far is flimsy, suspect and possibly motivated. There’s no concrete evidence to substantiate the movement of funds from the ‘beneficiaries’ of the liquor policy to the coffers of the AAP. It’s up to the judiciary to set matters right and order the release of Kejriwal on bail at the earliest. 

Lamentably, the bail jurisprudence in India, by and large, is dismal and heavily favours the State and prosecution. Courts often use denial of bail to a suspect of crime as a means to punish him (women are somewhat statutorily privileged in this regard), knowing that the actual trial can be inordinately delayed thereby denying an accused the opportunity to prove his innocence. Suffice it to say that the judicial system, especially the lower courts are up for grabs, and can be manipulated by a more influential complainant to the disadvantage of his less influential adversary. In a Modi versus Kejriwal contest, the outcome is predetermined. Kejriwal can be kept out of the electoral fray by merely ensuring that he’s denied bail.

Judiciary must remain independent

So, what happens to fair and free elections when a national leader of a national party is kept out of the race? Democracy cries out for a ventilator. Who’s in charge of this life sustaining device? At the moment Modi, unless both of the following circumstances fall in place and attempt to wrench Modi’s hand away from the switch. First, the entire opposition, including Mamata Banerjee and the leftists must sink their insignificant differences and fight a joint electoral war against the BJP. Not a single Lok Sabha seat should witness a triangular contest. The BJP has 36 per cent of the nation’s votes. The balance 64 per cent, if not disenchanted, are certainly not enchanted with the ruling party. Modi knows that. Secondly, and perhaps more importantly, the judiciary, particularly the Supreme Court, must remain fiercely independent. Kejriwal must get timely bail if only in the interest of fair elections. Even if a court inclined to grant bail to Kejriwal extracts an undertaking from him that after elections he will once again surrender himself to the custody of the EDl so be it. 

The Supreme Court struck down the electoral bond scheme only because it felt that secrecy in matters of public importance is a threat to a democracy. This is a graver situation. A third term aspirant for prime minister locks up his political rival in jail, thereby curtailing and diminishing, if not completely extinguishing a legitimate challenge to his aspirations.

Global concern over India's democracy

India remaining a democracy is a matter of global concern. We are surrounded by wannabe democracies, where Russia and China don’t even put up a pretence of being one. Take away personal freedom from our citizens by denying them the unfettered option to elect a legislator of their choice, democracy is dead. It doesn’t matter that when (‘if’ may be a more appropriate preposition) Kejriwal is freed, he doesn’t garner the requisite support to threaten BJP’s victory. That’s immaterial, because then the BJP would have won fairly and democratically. But an election without Kejriwal is an election that never happened. Voltaire, the French philosopher thus eulogised free speech when he said, “I may not agree with your views but I’ll defend with my last breath your right to express them”. Germany through its spokesman has questioned Kejriwal’s arrest but has been told by India to mind its own business. So has the US. The propriety of Germany’s and US' ‘interference in Indian affairs’ aside, it is indicative of the importance of India being robustly democratic. It matters to the civilised world.

It’s time that the combined opposition publish a joint manifesto in which they promise the abrogation of pernicious legislations like the PMLA, UAPA, MCOCA and other such draconian enactments which are used as weapons of oppression against opponents by a mal intentioned executive in power. Additionally, the combined opposition must swear by energising and rendering completely independent our judicial machinery.    Let the contest not be reduced to the Judiciary vs. ‘Modi-ciary’. The popular perception is that the BJP is invincible, and its victory only has to be formally declared. Why then is Modi sullying the glory of his third term by going to the polls with Arvind Kejriwal possibly barred from campaigning? C’mon dear PM, demonstrate democratically that you believe in yourself.

(The writer is a senior advocate who practices in the Supreme Court of India. He heads the Mumbai law firm Oasis Counsel and Advisory. Views are personal. By special arrangement with The Billion Press)