Delhi chief minister Arvind Kejriwal on Wednesday was unable to get instant relief from the Delhi high court against his arrest by the Enforcement Directorate (ED) last week, prolonging the legal battle over his alleged involvement in the Capital’s controversial 2021-22 excise policy that is playing out just weeks ahead of the general elections.

Undermining his hopes of getting a reprieve before he is produced before a special court on Thursday after his six-day ED custody is up, the high court posted his petition for a hearing on April 3, emphasising the need for a response from the federal agency to address the legal and validity issues raised in the CM’s petition.

A single-judge bench of justice Swarana Kanta Sharma issued notice on his plea seeking release and declaring his arrest and remand as illegal, but underlined that no order could be issued to grant any immediate relief to Kejriwal until ED was given reasonable time to respond to his petition as well as the plea for interim relief.

“This court is of the opinion that the present petition raises several issues of legality and validity regarding the arrest and remand of the petitioner. In this court’s opinion, such important questions and issues cannot be summarily heard and decided, by giving opportunity to only one party to file petition, documents…especially when copy of the petition was provided to the Directorate of Enforcement yesterday,” said the judge in her 10-page order.

Kejriwal was arrested on March 21 by ED, hours after the Delhi high court denied his request for interim protection from arrest — a stunning turn of events that left the Capital’s politics in turmoil and pushed to new heights the ongoing conflict between the Union government and the Aam Aadmi Party (AAP).

His supporters have decried his arrest as a politically motivated move aimed at tarnishing his image ahead of the Lok Sabha polls. ED maintains Kejriwal’s arrest was based on substantial evidence linking him to the alleged money laundering activities associated with the excise policy.

The AAP has insisted that Kejriwal will continue as CM and he has issued two orders from jail. “After Kejriwal’s arrest, the level of public sympathy has gone up for us. There is just one sentiment that the BJP has gone one step too far. So, I would feel it has benefitted us electorally,” minister Atishi told PTI news agency. The party has also held several protests across the Capital and is planning a mega Opposition rally on March 31.

HC stresses on fairness of process

The high court highlighted the significance of allowing both parties to present their arguments fully, stating that the issues raised in the petition filed on Saturday (March 23) were complex and required thorough consideration. Justice Sharma underlined the importance of fairness in the legal process, asserting that denying ED an opportunity to respond would violate principles of natural justice.

“It will be unfair to not give an opportunity to ED to rebut the same by way of filing of a detailed response…and declining this opportunity would amount to denial of fair hearing as well as violation of one of the principles of natural justice,” said the court, asking the agency to file its replies both to the petition filed by Kejriwal as well as the application for instant relief by April 2.

Justice Sharma held that ED’s reply was “essential and crucial to decide the present case”, rejecting a contention by Kejriwal’s legal team, led by senior counsel Abhishek Manu Singhvi, that no formal reply is required to be filed by the agency and that the court should immediately decide the plea for interim relief.

It also highlighted that any order to release Kejriwal will mean granting him interim bail while he had filed a writ petition before the high court to assail his arrest and detention. “The writ jurisdiction under Article 226 of the Constitution of India is not a ready substitute for recourse to the remedy of bail under Section 439 of the CrPC (Criminal Procedure Code) ordinarily,” said the judge in her order.

Noting that Kejriwal’s petition itself stated that it had to be read as part of the application for instant relief, the court said that it would not be legally sound to decide the application alone without considering the contentions in the main petition. It added Singhvi too read out from the main petition while he argued the application.

In court documents, ED has called the CM “kingpin and key conspirator” of the alleged Delhi excise policy scam.

Kejriwal was the third major AAP leader to be arrested in the probe after his former deputy and senior AAP leader Manish Sisodia as well as the party’s Rajya Sabha MP Sanjay Singh. ED also arrested Bharat Rashtra Samithi leader and Telangana lawmaker K Kavitha in the case on March 15.

Kejriwal has rejected the charges.

“The fact that the petitioner was arrested without any interrogation or questioning – clearly shows that the present proceedings of arrest are pre-meditated and nothing but an act of political vendetta to skew the balance and level-playing field in the general elections, 2024. The only basis of grounds of arrest is managed and procured statements which have been obtained under an arrangement,” his petition argued.

Kejriwal’s team questions timing

During the proceedings on Wednesday, Kejriwal’s legal team, led by Singhvi, argued against the necessity of his arrest, questioning the timing and alleging misuse of power by the ED. Singhvi highlighted procedural irregularities and emphasised that the CM’s cooperation with the investigation had been forthcoming.

Singhvi submitted that the arrest of a sitting CM at the cusp of elections and at a time when model code of conduct (MCC) was in force was bad and impinged the doctrine of basic structure, as it disturbed the level playing field. Singhvi added that ED currently was at “non-trial preliminary intermediate stage” of investigation and thus there was no necessity to arrest the CM only based on some alleged materials.

He further argued that though Kejriwal had asked ED to give him a questionnaire and allow him to appear virtually, the probe agency never tried that, adding his arrest was only based on the statement of the accused person who later turned approvers – repeatedly called “Jaichands” by Singhvi.

Singhvi added that his client cannot be vicariously liable for a specific offence understand Section 70 of the PMLA which only relates to companies. “AAP which is a political party under Section 2(f) of the Representation of People Act, 1951, cannot be held to be a company as ED alleged in grounds of arrest,” said Singhvi.

The senior counsel also contended that the excise policy in question was made in a transparent manner after deliberation with various secretaries, officers of excise, planning, finance and law departments, and thereafter approved by ministers and L-G of Delhi. “It was an economic policy decision and not subject to review,” said Singhvi.

Senior counsel Amit Desai and Vikram Chaudhary also appeared for Kejriwal and sought to make submissions, but additional solicitor general (ASG) SV Raju objected to the AAP convener being represented by more than one senior counsel, as is the convention. After he said that ED would also have to bring two more lawyers to represent it if the court were to allow three senior counsel for Kejriwal, Desai and Chaudhary chose not to argue.

In response to Singhvi’s submissions, ASG Raju sought time to file a reply, accusing Kejriwal’s legal team of deliberate delay tactics. Raju asserted the probe agency’s right to be heard and emphasised the need for a fair legal process.

“It was a deliberate delay on their part to see that the copy was given to me only at the last minute. They are talking about the level playing field, but when it comes to practice, there is a double standard. We had written them emails on Sunday and Monday, but they deliberately did not give us copies,” the law officer said. Raju added that the agency has the right to file a detailed reply and to be heard before passing any order.

Responding to the objections, Singhvi submitted that EDs attempt to file reply in the plea despite everything being on record was a motivated delaying tactic to say “let the CM rot in jail” and ensure that the petition is rendered infructuous. He also added that the there was no requirement of issuing notice to the probe agency since the grounds of arrest and the March 22 order are on record and clearly reflect EDs stand as far as Kejriwal’s arrest is concerned.

But the court order, released later in the day, turned down Singhvi’s submissions, stating that the court is duty bound to hear both sides fairly keeping in mind the principles of natural justice.