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ED Arrests Delhi CM in Liquor Policy Case

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  • Context (IE I TH I HT): A Delhi court sent CM Arvind Kejriwal to the Enforcement Directorate’s (ED’s) custody in connection with the excise policy case.
  • CM Kejriwal became the first serving CM in the country to be arrested.
  • Two cases, one by CBI and one on alleged money laundering being investigated by ED, have been registered in relation to the excise policy.

Can a sitting chief minister be arrested?

No immunity to CM

  • Article 361 of the IC: The President of India and governors are immune from civil and criminal proceedings during their term.
  • However, this protection doesn’t extend to Prime Ministers and Chief Ministers.
  • The Administrator or Lt. Governor (LG) of a Union Territory is not immune under Article 361.

Can an MLA/CM be arrested during the session of the Legislative Assembly?

  • Section 135A of the CPC: It exempts members of legislative bodies (Parliament, Legislative Assembly (LA)/Councils, LA of any UT) from arrest and detention under the civil process
    1. During the continuance of any meeting of such House of Parliament or, as the case may be, of the Legislative Assembly or the Legislative Council
    2. During the continuance of any meeting of such committee,
    3. During the continuance of a joint sitting, meeting, conference or joint committee of the Houses of Parliament or Houses of the State Legislature, as the case may be,
    4. During the forty days before and after such meeting, sitting or conference.
  • However, there is no exemption as such for criminal processes.
    • MP or MLA/MLC does not enjoy any immunity from being arrested in a criminal case, during the session, or otherwise.

Privileges for MPs and MLAs

Member of Parliament

  • Article 105(1): Freedom of Speech in Parliament.
  • Article 105(2): Immunity to a Member from any proceedings in any court with respect to anything said or any vote given by him in Parliament or any Committee thereof.
    • MPs and MLAs are not immune to criminal prosecution on bribery charges related to their votes or speech in Parliament or state assemblies.
  • Article 105(2): Immunity to a person from proceedings in any court with respect to the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
  • Article 122(1): Prohibition on the Courts to inquire into the validity of any proceedings in Parliament on the grounds of any alleged irregularity of procedure.
  • Section 135A of the Code of Civil Procedure, 1908

Members of the Legislative Assembly

  • Section 135A of the Code of Civil Procedure, 1908
  • Articles 194(2): Grants legislators’ immunity from legal proceedings concerning their speeches and votes in Legislative Assemblies.

Can a chief minister run for office from behind bars?

  • Section 8 of the Representation of the People Act, 1951: According to the law, a Chief Minister can only be disqualified or removed from office when convicted in any case.
    • In the case of Arvind Kejriwal, he has not been convicted yet.
  • The Chief Minister can lose the top job under only three conditions –
    1. Loss of majority support in the assembly.
    2. Through a successful No-Confidence Motion against the government.
    3. He resigns from the position.

Basic Norms for Holding Public Office

  • Manoj Narula versus Union of India Case, 2014: The SC mentioned that basic norms for holding a public office include constitutional morality, good governance, and constitutional trust.
    • Public officials are expected to act in a manner consistent with these principles.
  • The citizens expect persons in power to uphold high standards of moral conduct.
    • This expectation is particularly high for CM, which is seen as the repository of public faith.

Practical Difficulties of Functioning from Jail

  • They may face restrictions on accessing official documents or communicating with government officials.
  • There may also be questions about whether they can effectively fulfil their duties while in custody.

S. Ramachandran versus V. Senthil Balaji Case, 2023

  • Even if it’s technically possible for a CM to run the government from jail, there may be concerns about the legitimacy and effectiveness of their leadership under such circumstances.
  • The HC raised the question of whether an individual should receive a salary from the public purse while occupying a public office without performing any associated duties.

President’s Rule

  • The Lieutenant Governor can report to the President to suspend the operation of Article 239AA, which governs Delhi, if the LG is satisfied that:
    1. “A situation has arisen in which the administration of the National Capital cannot be carried on in accordance with Article 239AA” or
    2. “It is necessary and expedient to do so for the proper administration of National Capital Territory.”
  • He can cite the ‘failure of constitutional machinery in the state,’ a strong reason for the President’s rule in Delhi under Article 239AB of the IC.
  • The President’s rule will bring that national capital under the Union government’s direct control.

Enforcement Directorate

  • The ED is a multi-disciplinary organisation mandated to investigate offences of money laundering and violations of foreign exchange laws.
  • The Enforcement Directorate was established in the year 1956 as an ‘Enforcement Unit’ under the Department of Economic Affairs.
  • Later, in 1957, this Unit was renamed as ‘Enforcement Directorate’.
  • It functions under the Department of Revenue of the Ministry of Finance.

Structure

Headquarters

  • ED, which has its headquarters in New Delhi and is headed by the Director of Enforcement.
  • Five regional offices are located in Mumbai, Chennai, Chandigarh, Kolkata, and Delhi.

Recruitment

  • Recruitment of the officers is done directly and by drawing officers from other investigation agencies.
  • It comprises IRS (Indian Revenue Services), IPS (Indian Police Services), and IAS (Indian Administrative Services) officers, such as income tax officers, excise officers, customs officers, and police.

Tenure

  • Two years, but directors’ tenure can be extended from two to five years by giving three annual extensions.
  • The Delhi Special Police Establishment (DSPE) Act, 1946 (for ED) and the Central Vigilance Commission (CVC) Act, 2003 (for CV Commissioners) have been amended to keep the two chiefs for one year after they have completed their two-year terms.

Functions

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)

  • The Directorate is empowered to sponsor cases of preventive detention regarding contraventions of FEMA.

Foreign Exchange Management Act, 1999 (FEMA)

  • ED has been given the responsibility to investigate suspected contraventions of foreign exchange laws and regulations, adjudicate, and penalise those adjudged to have contravened the law.

Prevention of Money Laundering Act, 2002 (PMLA)

  • It has been entrusted to conduct investigation to trace proceeds of crime, provisionally attach the property, ensure prosecution of the offenders, and confiscation of the property by the Special court.

Fugitive Economic Offenders Act, 2018 (FEOA)

  • The ED is mandated to attach the properties of the fugitive economic offenders who have escaped from India warranting arrest and provide for the confiscation of their properties.
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