How the Supreme Court hemmed in ED’s power to arrest through the Kejriwal bail order

Last week’s Supreme Court order granting interim bail to Delhi Chief Minister Arvind Kejriwal in the money-laundering case filed by the Enforcement Directorate has not resulted in him walking out of prison because the Central Bureau of Investigation has arrested him in another case.

But the judgement by the bench of Justices Sanjiv Khanna and Dipankar Datta is nevertheless an important one.

It underscores the importance of transparency, judicial oversight and objective reasoning in the Enforcement Directorate’s exercise of powers to arrest under the Prevention of Money Laundering Act, a law that critics say is being misused to target the political Opposition.

Highlighting the lack of a clear policy on arrests, the judgement points out that the agency’s own data shows that in 5,906 cases filed under the money laundering law, only 513 persons had been arrested. This raises questions about whether the Enforcement Directorate is acting uniformly and consistently while making arrests, the judgement argues.

The judgement also clarifies that arrests are not to be made routinely in money-laundering cases. It articulates the threshold for the grounds on which the Enforcement Directorate can make arrests under the law, paving the way for what could be a new safeguard – the “need and necessity to arrest”.

Scroll unpacks the verdict.

Arrest subject to judicial review

Since August 2022, the...

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