CM Kejriwal has made it to the limelight once again as he ignored Enforcement Directorate’s (ED) 3rd summon on the basis that he didn’t find enough evidence. According to sources, the probe agency will summon CM Kejriwal for the fourth time after examining the reply filed by him in response to the previous notices.
Earlier in the day, security was stepped up outside Kejriwal’s residence amid apprehensions of his arrest by the ED. The Delhi police had set up barricades on two roads leading to Kejriwal’s residence, and even the staff members of the CM Kejriwal’s residence were stopped. After the Delhi Chief Minister on Wednesday skipped the third summons issued by the ED, Atishi and Saurabh Bhadwaj claimed that Kejriwal could be arrested.
The news that brewed around CM Kejriwal’s arrest
In a post on X, formerly known as Twitter, Delhi’s Law and PWD Minister Atishi on Wednesday late night said that the ED may raid CM Kejriwal’s residence on Thursday morning and arrest him. Meanwhile, Delhi Health Minister Saurabh Bharadwaj also speculated about Kejriwal’s arrest by the probe agency.
Not only CM Kejriwal’s right hand, Atishi posted about his reported arrest but New Delhi’s Health Minister Saurabh Bharadwaj had also posted the same leading many to affirm the alleged rumour.
CM Kejriwal’s response via conference
On December 22, 2023, Kejriwal was summoned by the ED for the third time and was asked to appear before the agency on January 3. The agency had earlier on November 2 and December 21 issued summons to Kejriwal. The national convenor said that ED wants to call him on the pretext of investigation and then arrest him.
However, he refused to appear claiming the notices were vague, motivated and unsustainable in law. Meanwhile, several AAP leaders have been questioning the timing of the ED notices as the Lok Sabha elections are around the corner. In his 4.10 minutes press conference, CM Kejriwalaccused BJP of wanting to arrest him and dent his honesty. He further added that his lawyers claimed the summons to be illegal.
“The truth is that there was no corruption. BJP wants to arrest me. My biggest asset is my honesty & they want to dent it. My lawyers have told me that summons sent to me are illegal. BJP’s aim is not to probe me, but not to let me campaign for Lok Sabha elections. They want to call me on the pretext of investigation and then arrest me,” he said.
Meanwhile, Kejriwal is set to will leave for a three-day tour of Gujarat on 6 January in view of the upcoming Lok Sabha polls, AAP sources said as reported by news agency PTI. During his three-day tour, the Delhi CM will address public meetings and party workers and is also likely to meet jailed AAP leader Chaitar Vasava.
CM Kejriwal said that the truth is there was no corruption and blamed BJP for wanting to arrest him on false pretences. He further added that the purpose of the BJP is not to investigate him, but to prevent him from contesting the upcoming Lok Sabha elections. He said that the main aim of this alleged excise policy case and this investigation was to drag his name and dent his ‘honest reputation’.
“My lawyers told me that summons (sent by the ED) is illegal. I sent them a letter explaining in detail why the summons is illegal. However, they are yet to respond to my questions. This means that they also know that the summons is illegal. I am ready to co-operate if legal summons is sent. BJP’s aim is to stop me from campaigning for Lok Sabha election 2024,” the 55-year-old leader said.
Legalities behind arresting a sitting CM
The only protection from arrests afforded to a government figure through the Constitution is the President of the Republic, who is immune from civil and criminal proceedings until his/her term ends. Article 361 of the Constitution states that the President of India and governors of states are not answerable to any court for “any act done in discharge of their official duties”.
This provision particularly states that “The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.”
As far as the CBI and ED is concerned, according to the provisions of the Code of Criminal Procedure 1973 (CrPC), the law enforcement agency can arrest any person against whom an arrest warrant has been issued by the court. The officers have no discretion in carrying out the arrest warrant issued by the courts.
In the case of arresting a Chief Minister, the CBI and ED can arrest a person who is accused, while adhering and in compliance with certain rules and procedural aspects. They can only be arrested if there is enough reason to believe that the accused would abscond, will try to destroy evidence, or act in a way so as to avoid the legal process.
Therefore, the Chief Minister or de facto head of state government is treated legally, under the capacity of a government official, who can be arrested by the CBI and ED on other grounds which are not relevant to their discharge of official duties since, duties carried out as Chief Minister have been executed in accordance to the Constitution of India, laws, rules and regulations of the Union of India.
Under Section 135 of the Civil Procedural Code, Members of Parliament have protection from being arrested up to 40 days before, 40 days after, and during the period when Parliament is in session. With three parliamentary sessions being around 70 days each, the immunity against arrest extends to nearly 300 days in a single year. However, the protection only extends to civil cases. In matters of criminal nature or arrests on preventive grounds, there is no protection afforded to any member of the Rajya Sabha or Lok Sabha.