Politics of criminal law

The arrest of former Deputy Chief Minister of Delhi, Manish Sisodia, has spurred eight Opposition parties to write to the Prime Minister alleging “blatant misuse” of central agencies for political purposes. At the same time, questioning of Lalu Yadav and Rabri Devi by CBI has been described as humiliating by the Delhi Chief Minister, Arvind […]

The arrest of former Deputy Chief Minister of Delhi, Manish Sisodia, has spurred eight Opposition parties to write to the Prime Minister alleging “blatant misuse” of central agencies for political purposes. At the same time, questioning of Lalu Yadav and Rabri Devi by CBI has been described as humiliating by the Delhi Chief Minister, Arvind Kejriwal.
The allegations appear attractive and would certainly act as fodder in Opposition’s narrative against the Central government. However, in the context of Manish Sisodia, they are entirely wrong: (a) It’s another example of pot calling the kettle black (b) allegations of corruption are different from other penal actions (c) much can be said about on the liquor scam and (d) nature of protests post arrest.

Pot calling the kettle black
There is no political party that has never let loose the criminal law machinery on its opponent. Using criminal law machinery to settle political scores is attractive for any ruling party due to our fractured system. Curtailment of civil liberties is the best way to stifle an opposition. Under the Indian Constitution, “public order” and “police” is in “State List.” A State government has complete control over the police machinery. It can set in motion legal machinery on the most trivial issue – whether genuine or imaginary.
The police are more than happy to oblige its masters. The fact that court prosecutors are under the State government and in most cases are selected on an ad hoc system, further allows a ruling party to use the legal process for political objectives. In innumerable cases the courts have reiterated that a prosecutor is not a mouthpiece of investigating agency. However, this is not a reality.
Last year, Punjab Police booked BJP Spokesperson Tajinder Pal Singh Bagga on the charges of making provocative statements, promoting enmity and criminal intimidation, for alleged derogatory tweets against Delhi CM, on a complaint by an AAP leader. Punjab Police also registered a case after the ruling AAP accused the BJP of an attempt to poach its MLAs.
In cases which may reek of outright abuse of powers, the courts have been willing to pass protection orders. Last month, FIR was registered against Congress leader Pawan Khera in Assam for criminal conspiracy and inciting communal disharmony over his remarks targeting Prime Minister. This resulted in Assam Police landing in Delhi and stopping Pawan Khera from flying from Delhi Airport. The Supreme Court took the matter on urgent mentioning and granted him interim protection.
In 2020, the Supreme Court directed no coercive actions in a petition by BJP leaders to transfer cases outside West Bengal. On behalf of BJP MP Arjun Singh, it was submitted that 64 cases, mostly simple offences, were registered after he left the Trinamool Congress in 2019. In 2021, another Bench of Supreme Court expressed concerns in spurt in motivated FIRs against political rivals. The court did not interfere in Chhattisgarh High Court decision to stay FIR lodged against former CM Raman Singh and BJP leader Sambit Patra for their tweets on toolkit controversy.

Allegations of Corruption
It is ironical that Arvind Kejriwal is at the forefront of attacking the government on investigations on corruption and has now aligned himself with leaders who were once in his corruption ‘hit list.’
It may be alleged that the Central government is using CBI and ED overzealously. As per the Government’s own data, ED registered 87 cases under the PMLA against MPs, MLAs, and MLCs—both former and sitting—in the past five years. The number of cases registered under FEMA and PMLA between 2019 to 2022 was 14,143, which is almost three times as compared to the cases in 2014 to 2017. However, I am not aware of any judgment where the investigation has been entirely quashed at the very initial stage. It is, thus, doubtful to say that investigations initiated by the agencies have been entirely baseless.
Corruption is endemic and strictly speaking no party can say it is above board. Few days back, in State of Chattisgarh vs. Aman Kumar Singh, the Supreme Court itself stated that it would be eminently desirable if the high courts maintain a hands-off approach and not quash a first information report pertaining to “corruption” cases, specially at the stage of investigation, even though certain elements of strong-arm tactics of the ruling dispensation might be discernible. It was opined that considerations that could apply to quashing of first information reports pertaining to offences punishable under general penal statutes ex proprio vigore may not be applicable to a Prevention of Corruption Act offence.

Liquor Scam
In the past decade, several policy decisions have been subject to criminal investigation. The most prominent examples could be allocation of 2G spectrum to private entities and allocation of coal blocks to public and private enterprises.
It is undeniable that the Delhi Government’s New Excise Policy 2021-22 made a drastic change in the sale of liquor and the government no longer had anything to do with selling liquor. It allowed only private shops to do so. It is now alleged that “Some of the L-1 licence holders are issuing credit notes to retail vendors with an ab initio intention to divert the funds as an undue pecuniary advantage to public servants…showing false entries in their books of accounts to keep their record straight”.
Specifically, in the case of Manish Sisodia, as per media reports, investigation has found that files are missing, deleted files originated externally and were received through WhatsApp, and 14 mobile phones and four SIM cards were swapped several times, sometimes in one day. In allegations of corruption and conspiracy, this itself is enough ammunition for the investigators. It is invariably difficult to establish conspiracy by direct evidence and the circumstances mentioned above could play a huge role in prosecution’s case.

It is worth pondering as to why Sisodia never sought anticipatory bail. He was well aware about the investigation. At the same time, his CM was taunting the agencies to arrest if there is scam. The party took a calculated legal and political risk by not using the legal protections available to anyone who apprehends arrest. Subsequent to his arrest, there have continuous protest marches outside CBI office, banners have been put in show of strength and press statements. It is now alleged that Sisodia is at risk inside the prison, even though Tihar Jail is under the jurisdiction of the Delhi Government.
All of this, may fit with the AAP’s narrative. Prior to coming in the power, Kejriwal had launched a massive tirade against local police. Only time will tell whether the political and legal risk by AAP is worth it. However the shrill narrative pushes down further confidence of a common man in entire criminal law machinery, which in any event has never been too high.

Amit Gupta, an Oxford University and Columbia Law School graduate, specialises as Counsel/Litigator in New Delhi.