Is arrest really imminent or inevitable for Arvind Kejriwal and Hemant Soren?

The past few weeks have been agog with reports of the imminent arrest of Delhi chief minister Arvind Kejriwal and Jharkhand chief minister Hemant Soren. Both ignored repeated summons issued by the Enforcement Directorate (ED) to appear for ‘questioning’.

Both chief ministers refused to appear, saying the summons were politically motivated and the timing suspicious because of the impending Lok Sabha elections barely three months away.

Every time newspapers and TV channels reported the imminent arrests, apparently based on unattributed ED sources, speculation within the BJP or the government reached fever pitch, and in the case of Kejriwal — obviously because Delhi Police is under the Union home ministry unlike Jharkhand Police — there was heightened police deployment, movement and barricading around the chief minister’s residence.

Politically, the arrest of the two chief ministers is deemed risky for the BJP, which would not like to mess up the script it has readied for the general elections. The arrests can wait until the BJP returns with an even greater majority than in 2019. What does it gain electorally or politically by allowing the two chief ministers to say they have been targeted maliciously for political reasons?

Legally, too, there seems to be a catch as pointed out in an explainer by the Indian Express. An order by a single-judge bench of Delhi High Court in October 2023 stated that the power to summon under section 50 of the PMLA (Prevention of Money Laundering Act) does not include the power to arrest a person. “Authorities do not have the power to arrest on their whims and fancies,” ruled justice Anup Jairam Bhambani.

Section 19 of the PMLA states that if authorities have reason to believe (the reason to be recorded in writing), on the basis of material in their possession, that a person is guilty of an offence punishable under the act, then the person can be arrested. It also states that the person thus arrested must be informed as soon as possible of the grounds for such arrest.

So, in the case of the two chief ministers, the ED must have enough material and prima facie evidence to prove that they are guilty; and the agency has to record in writing the reason for arriving at this conclusion.

The explainer, significantly, states that there is no provision to arrest a person for non-cooperation. There is also no limit fixed on the number of summons the ED can issue before concluding that the person is not cooperating.

The act, however, provides for a one-month jail term and a fine ranging from Rs 500 to Rs 10,000 if any person refuses to produce documents, or for non-appearance despite summons issued by the ED. It is not clear if this provision has ever been invoked.

While the ED is not required to declare whether people are being summoned for questioning as a witness or an accused, the provisions are also not clear whether the summons should mention the grounds for questioning.

Until now, the ED has argued that in the absence of any specific provision, it need not make any such disclosure before summoning or arresting a person. An unnamed ED official is quoted by the Indian Express as saying that the agency cannot decide whether a person is a witness or an accused without interrogation.

There is another provision though. Under section 63 of the act, the ED can lodge a fresh case for non-compliance under section 174 of the Indian Penal Code to arrest someone and put them up for trial. As mentioned before, this provision provides for a month’s imprisonment and/or a fine of up to Rs 10,000.

The two chief ministers have offered reasons for their non-compliance in writing. The ED would have to convince the court that the non-compliance is deliberate and that there is prima facie evidence of their guilt before proceeding under this section.

Another reason for the ED’s hesitation could be its plummeting credibility and notoriety for acting as the government’s agent to hound the opposition.