Delhi HC order on ACB: Why Kejriwal should not celebrate too soon

The Delhi High Court judgment handed down earlier this week relating to the jurisdiction of Delhi Anti-Corruption Bureau (ACB) on corruption offences committed by central government employees seemed to raise the spirits of Delhi Chief Minister Arvind Kejriwal who called the judgment a “huge embarrassment” for the Modi government." [caption id=“attachment_2265054” align=“alignleft” width=“380”] Delhi Chief Minister Arvind Kejriwal. PTI[/caption] In July last year, the Modi government issued a notification clarifying that the jurisdiction of the ACB to initiate proceedings for corruption offences shall be limited to officers and employees of the Delhi government. Earlier this month, it issued another notification reiterating that the ACB shall not initiate any proceedings in offences against employees and officers of the Central government. Here are some perplexing aspects about the judgment which can be read here. Firstly, it is very critical to understand that this judgment related to the question of bail to a constable of the Delhi Police (Delhi Police is under the administration of Centre) against whom an FIR was filed by the ACB for allegedly demanding a bribe from a Delhi resident. Therefore, this judgment was not a hearing on the validity or constitutionality of Central government notifications restricting the jurisdiction of the ACB. This begs the question: how did Delhi High Court end up dealing with the question of the Modi government’s notifications on the powers of the ACB? The answer is that one of the arguments put forth by the lawyer for the constable was that the ACB could not have initiated proceedings due to the Central government’s notification restricting the ACB’s jurisdiction to Delhi government employees. Secondly, even if the lawyer for the accused constable raised the question of the ACB’s jurisdiction, was the Delhi High Court compelled to decide anything at all on the Modi government’s notification to determine the question of bail? The answer is no. Quoting from a Supreme Court judgment, the Delhi High Court itself seemed to infer that even if the accused constable could have been prosecuted only by the CBI or Delhi Police (and not the ACB), that irregularity (ie, of the ACB initiating proceedings) could not have adversely affected the investigation or the eventual trial. This simply meant that Delhi High Court, if it wanted, need not have dealt with the larger question of the Modi government’s notification at all and, instead, restricted its ruling to the question of bail. Thirdly, even if the Delhi High Court decided to deal with the question, it should not have done so in the manner it did. The reason is, as it itself noted in Paragraph 34 (see screenshot here), this important constitutional issue (whether or not the notification was valid under the Constitutional separation of powers between the Union, States and Union Territories) could not be “finally determined without hearing the Union and examining its stand”. Fourthly, for Kejriwal to see this judgment as an ultimate victory and a ‘striking down’ or ‘quashing’ of the notification is foolhardy. As evidenced in Para 34 (reproduced above), the High Court categorically stated that it is considering the merits of the constitutional argument “on the basis of limited representation, only for the purposes of this case”. Therefore, to view this as ’the end’ of the notification even at the level of High Court proceedings is jumping the gun. In fact, as the High Court notes, another Bench of the same High Court is hearing this issue. Fifthly, the myth that, through this notification, the Modi government is weakening the war against corruption is rather silly. Merely because the Central government’s notification seeks to bar the Delhi ACB from initiating proceedings on corruption offences against Central government employees does not mean they enjoy a blanket immunity from criminal procedure. The Delhi Police and/or the CBI are the bodies in charge of handling allegations of corruption against such employees. In fact, the Modi government’s notification on limiting the powers of the ACB was based on guidelines issued by the Central Vigilance Commission (CVC) on the jurisdiction of the CBI and the ACB. The notification categorically states that at the very beginning. These guidelines are aimed at preventing duplication of effort. Cases which substantially and essentially concern Central government employees are investigated by the CBI according to the guidelines. Here is a screenshot of the CVC guidelines and CBI Manual prepared in pursuance to the guidelines. Lastly, while Kejriwal may have congratulated himself after the judgment, invoking Ambani, his efforts in the ACB’s case against Ambani present a totally different picture. At the event to mark 100 days of his government, Kejriwal alleged that after it had asked the ACB to file a case against Mukesh Ambani and Reliance Industries during his 49-day government, the Modi government issued an order restricting the ACB’s jurisdiction to Delhi government officials only, alleging that this was done to protect Ambani. Aside from the rhetoric, a question arose whether the notification restricting the ACB’s jurisdiction would come into effect in cases filed after it was notified. The Modi government made it clear that the notification’s application was prospective (and not retrospective) and, therefore, the Delhi ACB was free to resume proceedings against Ambani and others. One would have, therefore, thought the ACB under the Kejriwal government would have done so. Surprisingly, the reverse is the case. Former cabinet secretary Kamini Jaiswal, one of the complainants in the FIR, is quoted in The Caravan as stating that “the investigation is not going anywhere” because Kejriwal has “gone off track”. Prashant Bhushan, who is no longer with Kejriwal’s Aam Aadmi Partty, told the magazine that if the Delhi government was serious about the investigation, it could cite a reason to the Delhi High Court why the investigation was stalled. Deputy Chief Minister Manish Sisodia did not respond to the magazine’s repeated requests for comment.